Undertakings. (a) The Investment Manager agrees: (i) to furnish the Company with quarterly statements of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value; (ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio as soon as practicable after such transactions have taken place; (iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requested; and (v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof. (b) The Company agrees: (i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge; (ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions; (iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA; (iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and (v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Sources: Investment Management Agreement (RCM Equity Funds Inc)
Undertakings. 3.1 [ ] undertakes to the Insurer that:
(a) The Investment Manager agrees:[subject to the Insurer's procedures to deal with system downtime or denial of access to Insurer systems not caused by some fault on the part of [ ]], it will use all reasonable endeavours to sell and administer the [Policies] in the [Territories] with all due skill, care and diligence expected of a competent insurance intermediary and in accordance with the [Underwriting Rules];
(b) it shall ensure that its employees have all the necessary skills, competencies and experience and equipment to properly and expeditiously perform their obligations;
(c) it will not make any unsubstantiated statement or knowingly perform any act which will or may reflect adversely on the brand, business, integrity, goodwill or commercial interests of the Insurer;
(d) [it will inform the Insurer, to its address or such other address as may be notified, in a timely manner of any material relevant information received by it which is likely to be of interest, prejudice, use or benefit to the Insurer in relation to any [Policy];]
(e) it will inform the Insurer in a timely manner of any development which may have a material impact on its ability to carry out the [Services] effectively and in or its compliance with the [Applicable Requirements];
(f) [it will at all times during the continuance of this Agreement use its reasonable endeavours to do all such acts as may be in the best interests of the Insurer under this Agreement, including in accordance with the terms of the delegated underwriting authority, and which are conducive to the proper and timely performance of the duties and obligations imposed on it by this Agreement;]
(g) it will promptly process applications for insurance and promptly issue the [Insurance Documentation] in accordance with the [Services];
(h) [subject (save in the event of fault on the part of [ ]) at all times to the provision by the Insurer of the necessary degree of access to the Insurer's IT systems, it will at all times perform the [Services] in accordance with the [Service Levels];]
(i) to furnish it will remain for the Company with quarterly statements duration of this Agreement duly authorised by any relevant [Regulatory Authority], and will notify the PortfolioInsurer, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape orwithout delay, in the case event that there is or there is likely to be a change in its regulatory status which would impact on its ability to perform any of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager its obligations pursuant to reflect its fair market valuethis Agreement;
(iij) to furnish statements to the Company evidencing any purchases and sales it will maintain a business continuity plan which makes provision for the Portfolio as soon as practicable after prompt and efficient handling of any incident which impairs its ability to perform any of its obligations pursuant to this Agreement and promptly share such transactions have taken place;
(iii) to maintain strict confidence in regard to business continuity plan with the Portfolio; (iv) to provide to the Company Insurer upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedrequest; and
(vk) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity it will comply at all times with information furnished by the Investment Manager to the Company specifically for use in the preparation thereofall [Applicable Requirements] when performing its obligations under this Agreement.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Undertakings. The Pledgor shall (except as provided in the Credit Agreement):
(a) The Investment Manager agrees:not create, attempt to create or permit to subsist any Security (other than the Pledge) on, over or with respect to any of the Pledged Portfolio or the right to receive or be paid the same or agree to do so;
(b) not sell, transfer, lend, assign, part with its interest in, dispose of, grant any option in respect of or otherwise deal with any of its Rights, title and interest in and to the Pledged Portfolio, or agree to do any of the foregoing (otherwise than pursuant to this Pledge);
(c) not take or omit to take any action which act or omission could adversely affect or diminish the value of any of the Pledged Portfolio;
(d) ensure that there are no moneys or liabilities outstanding in respect of any of the Pledged Portfolio;
(e) ensure that the Original Shares and any Shares comprised in any Related Assets are free from any restriction on transfer or rights of pre-emption;
(f) take all action within its power to procure, maintain in effect and comply with all the terms and conditions of all approvals, authorisations, consents and registrations necessary or appropriate for anything provided for on its part in this Pledge;
(g) ensure that the Pledge will at all times be a legally valid and binding first fixed security over the Pledged Portfolio ranking in priority to the interests of any liquidator, administrator or creditor of the Pledgor;
(h) without prejudice to clause 5(d), punctually pay all calls, subscription moneys and other moneys payable on or in respect of any of the Pledged Portfolio and indemnify and keep indemnified the Administrative Agent and its nominees against any reasonable cost, liabilities or expenses which it or they may suffer or incur as a result of any failure by the Pledgor to pay the same;
(i) deliver to furnish the Company Administrative Agent a copy of every circular, notice, report, set of accounts or other document received by the Pledgor in respect of or in connection with quarterly statements any of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;
(ii) to furnish statements to the Company evidencing any purchases and sales for the Pledged Portfolio as soon as reasonably practicable after following receipt by the Pledgor of such transactions have taken placedocument;
(iiij) to maintain strict confidence in regard promptly deliver to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide Administrative Agent all such additional reports to the Company information concerning the voting of Proxies on behalf of Pledged Portfolio as the Fund as shall be reasonably requestedAdministrative Agent may request from time to time; and
(vk) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio ensure that the Company deems to be in violation does not issue any shares after the date of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsthis Pledge.
Appears in 1 contract
Sources: Credit Agreement (CTS Corp)
Undertakings. 5.1 The Supplier hereby agrees and undertakes as related solely to the Purchased Receivables:
(a) The Investment Manager agreesnot to create or permit to subsist any encumbrance over any of the Supplier’s rights, title and interest in and to any contract relating to any Account Receivable and not to assign, transfer or otherwise deal with any of its rights in respect of any such contract or any Account Receivable, with the exception of expanded forms of reservation of title and title retention rights in the ordinary course of business;
(b) to take commercially reasonable steps to assist the Purchaser to recover each Purchased Receivable and any accompanying claims (if any, including, without limitation, any Delkredere Claims) and/ or to assist the Purchaser to perfect the assignment to the Purchaser of any Purchased Receivable and of any such accompanying claim;
(i) to maintain and implement administrative and operating procedures and to keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Purchased Receivables or in order to comply with applicable laws and regulations; (ii) to retain all such records and information relating thereto so long as any Purchased Receivable remains outstanding; and (iii) to hand such records and documentation to the Purchaser promptly on request;
(d) not to amend, cancel or terminate any Delkredere Agreement, Insurance Contracts or any other contract to which any Account Receivable assigned to the Purchaser relates and not to, or purport to, terminate, revoke or vary any term or condition of or extend the Maturity Date of any Purchased Receivable and to refrain from any action which might in any way prejudice or limit the Purchaser’s rights under or in respect of any Purchased Receivable or any respective accompanying claims;
(e) to procure that the Purchaser is named as loss payee or co-insured on all required Insurance Contracts;
(f) if an Insurance Contract is required by the relevant Schedule 1, to ensure that:
(i) to furnish the Company with quarterly statements of the Portfolio, valued, for each security listed on any national securities exchange Insurance Contract is at the last quoted sale price on the valuation date reported on the composite tape or, all times in the case of securities not so reported, by the principal exchange on which the security is traded, full force and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market valueeffect;
(ii) to furnish statements to it makes timely claims under each Insurance Contract as required by the Company evidencing any purchases and sales for the Portfolio as soon as practicable after such transactions have taken placePurchaser;
(iii) it procures that all payments received from an Insurance Coverage Provider in respect of a claim are paid into the Collection Account or to maintain strict confidence in regard to such other account as the PortfolioPurchaser may specify; and
(iv) not to provide to compromise or settle any claim under any Insurance Contract without the Company upon request a prior written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf consent of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedPurchaser; and
(v) to indemnify take any other action reasonably required by the Fund against Purchaser or the Insurance Coverage Provider with a view to recovering monies due and minimising loss;
(g) to provide the Purchaser at its request from time to time with any lossesand all information that the Supplier creates, claimssends, damageshas or receives in respect of each Insurance Contract and any associated Insurance Proceeds;
(h) to notify the Purchaser immediately upon the withdrawal of, liabilities or expenses arising out amendment to, any of the limits or based upon any untrue statement other endorsement or alteration to the terms of any material fact contained Insurance Contract;
(i) acknowledges and agrees that the Purchaser may, from time to time, appoint any employee, manager, agent or correspondent to review such information provided to the Purchaser and provide the Purchaser with the results of such due analysis;
(j) to immediately inform the Purchaser upon becoming aware of any Delkredere Obligor’s intention to terminate a Delkredere Agreement; and
(k) promptly after execution of (i) this present agreement; and (ii) any further Schedule 1 with respect to an additional Customer, to serve a notice of assignment on the relevant Customer and (if applicable) the Delkredere Obligor substantially in the form as set forth in Schedule 3 hereto.
5.2 The Supplier hereby irrevocably authorizes the Purchaser, in its sole discretion, to file any registration statementdocument or financing statements, prospectusand any amendments thereto, proxy statement, report or other document, in relation to all or any amendment Purchased Receivable or supplement theretoInsurance Contract, or arising out without the signature of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleadingSupplier, to the extent that permitted by applicable law. If not so permitted by applicable law, or in such untrue statement other circumstances as the Purchaser may reasonably request, the Supplier will execute and file any such document, financing statements, or omission was made in reliance upon amendments thereto, and in conformity with information furnished by such other instruments or notices, as may be necessary or appropriate to perfect and maintain the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager perfection of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall Purchaser’s ownership interest in any way constitute a waiver Purchased Receivable or limitation of any rights which the undersigned may have under any federal and state securities lawsInsurance Proceeds.
Appears in 1 contract
Sources: Account Receivable Purchase Agreement (Tech Data Corp)
Undertakings. Subject to the terms of the Senior Lien Debt Documents, the Pledgor hereby undertakes for as long as the Pledge remains in effect:
(a) The Investment Manager agreesto promptly do all acts and things necessary to ensure that it remains registered as the shareholder of the Shares in the share register (Aktienbuch) of the Company;
(b) to ensure that no action is taken the effect of which would be any of the Shares becoming intermediated securities (Bucheffekten) pursuant to the FISA;
(c) not to take any action with respect to the Pledged Assets that would, taken as a whole, materially and adversely affect (i) any rights of the Pledgees under this Agreement or any other Senior Lien Debt Document or (ii) the validity and enforceability of the Pledge;
(d) to promptly deliver to the Collateral Agent any and all acknowledgements of debt (Schuldscheine) relating to the Related Rights;
(e) without the Collateral Agent’s prior written consent, not to enter into any legal instrument relating to, or granting any form of security interest, lien, encumbrance or other interest or third party right over, or dispose of, transfer or assign the Pledged Assets, or take any other action having an Adverse Effect, in all cases except pursuant to the Canadian Security Documents;
(f) to exercise any and all subscription rights assigned to the Pledgor relating to the Shares and to take all such other actions as are necessary for the Pledgor to remain the owner of 100 per cent. of all shares and other equity securities in the Company; and
(g) without the Collateral Agent’s prior written consent, not to take any action or vote in favor of any resolution with regard to the Company whereby:
(i) to furnish the Company with quarterly statements any dividend declaration, distribution or payment of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security Dividends would be unreasonably or asset in a manner determined in good faith by the Investment Manager to reflect its fair market valuematerially altered;
(ii) to furnish statements to the Company’s legal form (inter alia, by merger (except in cases where the Company evidencing any purchases and sales for is the Portfolio as soon as practicable after such transactions have taken place;surviving entity), liquidation or transformation) or substance (e.g., by spin-off) would be modified or altered; or
(iii) the Company’s articles of incorporation (Statuten) would be amended and such amendment would have an Adverse Effect (e.g., current corporate purpose provision would be materially amended, Existing Shares would be modified or altered, transferability of Shares would be restricted, voting proxies may only be granted to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf shareholders of the Fund. The Investment Manager Company), provided that the foregoing undertakings shall provide such additional reports to not limit or restrict the Company concerning Pledgor from taking any action which is permitted under the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, Senior Lien Debt Documents save if and to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by action would affect the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectivesvalidity, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely mannerranking, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verifypriority, or to cause such third party to verify, at such time, that the number enforceability of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsthis Pledge.
Appears in 1 contract
Sources: Security Amendment and Restatement Agreement (Li-Cycle Holdings Corp.)
Undertakings. Each Grantor agrees to be bound by the covenants set out in this Section 6 (Undertakings) until the Discharge of Second Lien Obligations.
(a) The Investment Manager agreesExcept as otherwise permitted under the Second Lien Documents, no Grantor will:
(i) change its name as it appears in official filings in the jurisdiction of its incorporation or organization;
(ii) do business under any name other than a name authorized under sub-paragraph (i) above;
(iii) change its chief executive office, principal place of business, corporate offices or warehouses or locations at which Collateral is held or stored, or the location of its records concerning the Collateral, in each case, from that set forth in the relevant schedules to furnish this Agreement;
(iv) change its jurisdiction of incorporation or organization or incorporate or organize in any additional jurisdictions;
(v) otherwise amend its charter documents or the Company with quarterly statements rights attaching to its Equity Interests or grant any waiver thereunder in any way that is materially adverse to the interests of the PortfolioSecond Lien Secured Parties;
(vi) directly or indirectly liquidate, valuedwind up, for each security listed on terminate, reorganize or dissolve itself (or suffer any national securities exchange at liquidation, winding up, termination, reorganization or dissolution) or otherwise wind up itself; or
(vii) cancel, terminate or permit the last quoted sale price on the valuation date reported on the composite tape orcancellation or termination of any of its charter documents; unless, in the case of securities not so reported, each of sub-paragraphs (i) through (iv) any such new location is in Hawaii and the relevant Grantor will have given the Inventory Collateral Agent at least thirty (30) days’ prior written notice of such change and all action necessary or reasonably requested by the principal exchange on which Inventory Collateral Agent to preserve and perfect any Lien with respect to the security is tradedCollateral will have been completed or taken.
(b) Each Grantor permits the Inventory Collateral Agent and its agents and representatives, during normal business hours and upon reasonable notice, to inspect Collateral, to examine and make copies of and abstracts from the records of the Collateral, and for to discuss matters relating to the Collateral directly with such Grantor’s officers and employees.
(c) [Reserved].
(d) At the Inventory Collateral Agent’s request, any other security or asset in a manner determined in good faith by Grantor must provide it with any information concerning the Investment Manager to reflect its fair market valueCollateral that it may reasonably request.
(e) Except as otherwise permitted under the Second Lien Documents, each Grantor:
(i) must maintain sole legal and beneficial ownership of the Collateral;
(ii) must not permit any Collateral to furnish statements be subject to any Lien other than Permitted Security and must at all times warrant and defend the Company evidencing any purchases Inventory Collateral Agent’s Lien in the Collateral against all other Liens and sales for claimants (other than the Portfolio as soon as practicable after such transactions have taken placeLiens created under the ABL Loan First Lien Security Agreement);
(iii) must not sell, assign, transfer, pledge, license, lease or encumber, or grant any option, warrant, or right with respect to, any of the Collateral, or agree or contract to maintain strict confidence in regard to do any of the Portfolio; foregoing;
(iv) to provide to the Company upon request a written report with must not waive, amend or terminate, in whole or in part, any accessory or ancillary right or other right in respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedany Collateral; and
(v) must not take any action which would result in a reduction in the value of any Collateral.
(f) Except as otherwise permitted under the Second Lien Documents, each Grantor must pay when due (and in any case before any penalties are assessed or any Lien is imposed on any Collateral) all taxes, assessments and charges imposed on or in respect of the Collateral and all claims against the Collateral, except to indemnify the Fund against extent such tax, assessment or charge (i) is being contested in good faith with due diligence and by appropriate proceedings, (ii) is adequately disclosed and fully provided for in the financial statements of such Grantor in accordance with generally accepted accounting principles in the United States of America, (iii) enforcement is stayed (or bonded in full) for so long as such Grantor is pursuing such contest and (iv) such contest does not involve any losses, claims, damages, liabilities material risk of the forfeiture or expenses arising out of or based upon any untrue statement loss of any material fact contained in any registration statementportion of the Collateral and an adequate reserve is set aside for payment of such tax, prospectus, proxy statement, report assessment or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact charge and the costs required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereofcontest them.
(bg) The Company agrees:Except as otherwise permitted under the Second Lien Documents, in any suit, legal action, arbitration or other proceeding involving the Collateral or the Inventory Collateral Agent’s Lien, each Grantor must take all lawful action to avoid impairment of the Inventory Collateral Agent’s Lien or the Inventory Collateral Agent’s rights under this Agreement or the imposition of a Lien on any of the Collateral.
(h) [Reserved].
(i) to advise the Investment Manager [Reserved].
(j) Annually on each anniversary of the investment objectivesdate of this Agreement and from time to time on written demand from the Inventory Collateral Agent, policies and restrictions each Grantor will deliver to the Inventory Collateral Agent (i) a Security Supplement executed by an Authorized Officer of such Grantor, together with supplements to all of the Fund and of any changes Schedules attached to this Agreement or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly a written notice of any investments made for the Portfolio that the Company deems to be in violation confirmation executed by an Authorized Officer of such objectives or restrictions;
(iii) to maintain Grantor confirming that there has been no change in strict confidence the information provided in this Agreement since the date of the execution and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to this Agreement or the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf date of the Fund, and most recent Security Supplement or written confirmation delivered pursuant to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
this Section 6.1(j) (v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 ActUndertakings). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Sources: Abl Loan Second Lien Security Agreement (Par Petroleum Corp/Co)
Undertakings. (a) The Investment Manager agreesIssuer undertakes that so long as the Bonds or any part thereof remain outstanding, save with the prior approval of the Bondholder:
(i) it will use its best endeavours (A) to furnish maintain a listing for all the Company with quarterly statements issued Shares on the Stock Exchange, and (B) to obtain and maintain a listing for all the Conversion Shares issued on the exercise of the Portfolio, valued, for each security listed on any national securities exchange at Conversion Rights attaching to the last quoted sale price Bonds on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market valueStock Exchange;
(ii) to furnish statements to it will pay the Company evidencing any purchases expenses of the issue of, and sales for all expenses of obtaining listing for, the Portfolio as soon as practicable after such transactions have taken placeConversion Shares arising on conversion of the Bonds;
(iii) it will not make any reduction of its ordinary share capital or any uncalled liability in respect thereof or of any share premium account or capital redemption reserve fund except, in each case, where the reduction is permitted by applicable law and results in (or would, but for the provision of these Conditions relating to maintain strict confidence in regard rounding or the carry forward of adjustments, result in) an adjustment to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager Conversion Price or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not is otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made taken into account for the Portfolio that the Company deems to purposes of determining whether such an adjustment should be in violation of such objectives or restrictions;
made (iii) to maintain in strict confidence and for use only the avoidance of doubt, shall not restrict the Issuer from repurchasing any Shares on the Stock Exchange in accordance with respect to the Portfolio all investment advice given by the Investment Manager or KBIMAListing Rules and applicable law);
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely mannerit will comply with any law, includingrule, but not limited toregulation, effecting delivery judgment, order, authorization or decree of any Proxy solicitation received by a third party who may hold securities on behalf government, governmental or regulatory body or court, domestic or foreign having jurisdiction over the Issuer or any Subsidiary or any of the Fund, their respective assets and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; andproperties;
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver modify the rights attaching to the Shares with respect to voting, dividends or limitation liquidation;
(vi) reserve, free from any pre-emptive or other similar rights, out of its authorized but unissued ordinary share capital, the full number of Shares liable to be issued on conversion of the Bonds from time to time and will ensure that all Shares will be duly and validly issued as fully-paid; and
(vii) not make any rights offer, issue or distribution or take any action the effect of which would be to reduce the undersigned may have under any federal and state securities lawsConversion Price below the par value of the Shares of the Issuer.
Appears in 1 contract
Sources: Subscription Agreement
Undertakings. 8.1 The Borrower undertakes to the Lender to comply with the following provisions of this Clause 8 at all times during the Security Period, except as the Lender may otherwise agree in writing:
8.1.1 the Borrower will (aand will procure that each Group Company will) The Investment Manager agreesobtain, effect and keep effective all permissions, licences, consents and permits which may from time to time be required: (i) in connection with the Charged Assets; and (ii) to conduct its business;
8.1.2 the Borrower will (and to the extent any Group Company has charged its assets pursuant to a Security Document, the Borrower shall procure that this Group Company shall) own only for its own account the Charged Assets free from all Security Interests and other interests and rights of every kind, except for those created by the Security Documents;
8.1.3 the Borrower will not (and shall procure that each Group Company will not) sell, assign, transfer or otherwise dispose of the Charged Assets, any of its material assets or any share therein and shall give immediate notice to the Lender of any judicial process or encumbrance affecting the Charged Assets except for the Charged Assets covered by the Danish Floating Charge which may be disposed of in the ordinary course of business in accordance with its terms;
8.1.4 the Borrower will provide to the Lender with:
(i) the following information by way of a monthly report:
(a) details of any changes to furnish the management/directors of any Group Company;
(b) details of any Group Company incorporated or acquired or proposed to be incorporated or acquired on or after the date of this Loan Agreement; and
(ii) such other information (financial or otherwise) as the Lender may reasonably request from time to time concerning any Group Company and its affairs (including, without limitation, information concerning the Charged Assets, its assets from time to time and any request for amplification or explanation of any item in the financial statements, budgets or other material provided by the Borrower under this Loan Agreement);
8.1.5 the Borrower will provide to the Lender all documents, confirmations and evidence required by the Lender to satisfy its "know your customer" requirements or similar identification checks in order to meet its obligations from time to time under applicable money laundering, or similar, laws and regulations;
8.1.6 the Borrower will provide the Lender with quarterly statements its monthly consolidated management accounts for the Group (each certified by a director) as fairly presenting the data reflected, at the earlier of: (i) thirty (30) calendar days of the Portfolioend of each calendar month; or (ii) when such information is provided to any shareholder or investor in the Borrower (to include notification of the commencement of litigation by or against the Borrower) and, valuedthe Borrower will also provide copies of any announcement which is proposed to be made public by the Borrower concerning dividends, annual or interim financial positions and affairs of the Borrower (or any Group Company);
8.1.7 the Borrower will provide the Lender with its consolidated annual audited (if applicable) financial statements for each security listed on any national securities exchange the Group at the last quoted sale price on earlier of (i) provision of such statements to any shareholder or investor in the valuation date reported on Borrower or (ii) within one hundred and eighty (180) calendar days of the composite tape orend of each financial year of the respective Group Company, in each case including a statement of operations, balance sheet, statement of cash flows and shareholders' equity, certified by a firm of chartered accountants of recognised national standing;
8.1.8 the case Borrower will before the start of securities not so reported, each financial year and in any event within ten (10) calendar days of its approval by the principal exchange on which board of directors, provide the security is tradedLender with a consolidated budget for the Group showing: (i) a projected consolidated balance sheet as of the end of each financial year; (ii) a projected profit and loss account; and (iii) a cash flow forecast for the forthcoming financial year (a "Budget");
8.1.9 the Borrower will provide the Lender with any revised version of a Budget previously provided to the Lender pursuant to Clause 8.1.8 within ten (10 calendar days) of the approval by the Borrower’s board of directors of such revised Budget;
8.1.10 the Borrower will provide the Lender with (and shall procure that each Group Company will provide the Lender with) copies of all board packs, notices, minutes, consents and other material that it provides to its board of directors at the same time they are delivered to the directors (the Lender understands that particularly sensitive information may from time to time be redacted from the copy documents it receives);
8.1.11 the Borrower will provide the Lender with (and shall procure that each Group Company will provide the Lender with) all documents dispatched by the Borrower and each Group Company to its shareholders, or its creditors generally at the same time as they are dispatched;
8.1.12 the Borrower will grant (and shall procure that each Group Company will grant) the Lender the right to have a representative to meet with its managing director and finance director once each quarter throughout the Security Period to review and discuss the operating performance and financial condition of the Group. For any such meetings held in person, the Lender understands that it shall pay its own travel costs and related expenses. In addition, upon the occurrence of an Event of Default, the Lender shall be entitled to have a representative attend all meetings of the Borrower's (and each Group Company's) board of directors and/or committee thereof in a non-voting observer capacity. The Borrower agrees (and shall procure that each Group Company) agrees to give notice of all board meetings to the Lender at the same time as to its directors;
8.1.13 the Borrower will (and will procure that each Group Company will) maintain in force and promptly obtain or renew, and will promptly send certified copies to the Lender of, all consents required:
(i) for any other security or asset in a manner determined in good faith by the Investment Manager Borrower and each Group Company to reflect perform its fair market valueobligations under the Loan Documents, as relevant;
(ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio validity or enforceability of the Loan Documents; and
(iii) for the Borrower and each Group Company to continue to own the Charged Assets from time to time, and the Borrower will, and will procure that each Group Company will, comply with the terms of all such consents;
8.1.14 the Borrower will notify the Lender as soon as practicable after such transactions it becomes aware of:
(i) the occurrence of an Event of Default; or
(ii) any matter which indicates that an Event of Default has occurred, may have taken placeoccurred or is likely to occur, and will thereafter keep the Lender fully up to date with all developments;
8.1.15 the Borrower will (and shall ensure that each Group Company will) maintain adequate risk protection through insurances on and in relation to its business and assets to the extent reasonably required on the basis of good business practice taking into account, inter alia, its (and any Group Company's) financial position and nature of operations. All insurances must be with reputable independent insurance companies or underwriters;
8.1.16 the Borrower shall not (and shall ensure that no Group Company will) incur or allow to remain outstanding any Financial Indebtedness, except:
(i) under this Loan Agreement;
(ii) where a Group Company which has granted a Security Interest to the Lender over all or any of its material assets or shares is lending to or borrowing from the Borrower or another Group Company which has granted a Security Interest to the Lender over all or any of its material assets or shares;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use non-speculative hedging transactions entered into in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager ordinary course of the investment objectives, policies and restrictions of the Fund and of any changes business in connection with protection against interest rate or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMAcurrency fluctuations;
(iv) to take all actions necessary to effect delivery arising in the ordinary course of Proxy solicitations to the Investment Manager in business with suppliers of goods or services with a timely manner, including, but not limited to, effecting delivery maximum duration of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxiesninety (90) days; andor
(v) not permitted by the preceding paragraphs and the outstanding principal amount of which does not exceed €400,000 (or its equivalent in another currency or currencies) in aggregate for the Group at any time.
8.1.17 notwithstanding Clause 8.1.16, the Borrower shall not (and shall ensure that no Group Company will) incur or allow to hold remain outstanding any Financial Indebtedness owing to any shareholder of a Group Company (excluding other Group Companies) or any persons or companies related to them, unless such Financial Indebtedness is on terms (including interest, repayment and subordination) satisfactory to the Investment Manager, Lender;
8.1.18 the Borrower shall not (and shall ensure that no other Group Company will) create or permit to subsist any Security Interest over any of its directorsassets except for (i) any security entered into pursuant to any Security Document, officers and employees(ii) any security arising in the ordinary course of business (including without limitation any security deposits with landlords, liable, (iii) any security arising under any circumstances for any error retention of judgment title, hire purchase or other action taken conditional sale arrangement or omitted by the Investment Manager or the Subadviser arrangements having similar effect in respect of goods supplied to a Group Company in the good faith exercise ordinary course of their powers hereunder business and on the supplier's standard or usual terms and not arising out as a result of an act any default or omission by any Group Company and (iv) any security (which is fully subordinated to any Security Interest granted to the Lender on terms acceptable to the Lender) securing debt the principal amount of which (when aggregated with the principal amount of any other debt which has the benefit of security given by any member of the CustodianGroup other than any permitted under paragraphs (i) to (iv) above) does not exceed €400,000 (or its equivalent in another currency or currencies);
8.1.19 the Borrower will not (and shall ensure that no other Group Company will) declare and/or make or agree to make (whether in the relevant constitutional documents or otherwise) any distribution by way of dividend or otherwise without the prior written consent of the Lender;
8.1.20 the Borrower shall be responsible for all costs associated with the Charged Assets including all tax assessments, or insurance premiums, operating costs and repair and maintenance costs as well as any fees associated with registering of any broker-dealer or agent selected by Security Interest granted in connection with this Loan;
8.1.21 the Investment Manager or KBIMA Borrower shall at the request of the Lender from time to time (and shall procure that each Group Company shall) promptly execute and deliver such further documents creating Security Interests in good faith favour of the Lender over such assets and in such form as the Lender may require in its discretion from time to time to: (i) secure all monies, obligations and liabilities of the Borrower and/or any Group Company to the Lender; (ii) facilitate the realisation of the Charged Assets; and/or (iii) exercise the powers conferred on the Lender or a commercially reasonable manner, excepting matters as to which the Investment Manager receiver or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have administrator appointed under any federal and state securities laws.Security Document, from time to time;
Appears in 1 contract
Sources: Loan Agreement (Orphazyme a/S)
Undertakings. 2.1 In consideration of the respective undertakings of the parties, in particular, Parent’s undertakings in connection with the Merger, we irrevocably and unconditionally undertake, confirm, represent and warrant to Parent that (a) The Investment Manager agrees:
we directly own and control 26,233,458 ordinary stock units in the capital of UEL, and 20,500 preference shares in UEL (icollectively, the “Relevant Securities”) to furnish the Company with quarterly statements representing approximately 4.3% of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case existing issued share capital of securities not so reported, by the principal exchange on which the security is traded, UEL (excluding treasury and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;
(ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolionon-voting shares); (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:we do not have any other interest in any shares or securities of UEL other than the Relevant Securities save for any interest in certain non-voting shares of UEL which are held by WBL Corporation Limited; and (c) we are the beneficial owner of, or are otherwise able to control the exercise of, all rights attaching to, including voting rights, and the ability to procure the transfer of, the Relevant Securities.
2.2 We irrevocably and unconditionally undertake to (ia) attend and/or procure the attendance by proxy at the EGM, or at any adjournment thereof, and cause the Relevant Securities to advise be counted as present thereat for purpose of calculating a quorum; and (b) exercise and/or procure the Investment Manager exercise of all voting rights attaching to the Relevant Securities at the EGM, or at any adjournment thereof, in favor of any resolution required to approve the Merger, including the voting by UEL or its relevant subsidiaries, of up to all shares they hold in the Company, as will be set out in the notice of meeting in the circular to be sent to shareholders of UEL.
2.3 We irrevocably and unconditionally undertake that we will not, until the close of the investment objectivesEGM, policies and restrictions without prior written consent of Parent, sell, transfer, charge, encumber, grant any option over or otherwise dispose of, or permit any of the Fund and same, all or any of the Relevant Securities or interest in any changes Relevant Securities, or modifications thereto accept any offer in respect of all or any Relevant Securities, or enter in any agreement as regards any interest in the Relevant Securities.
2.4 We consent to the issue of a press announcement incorporating references to us and to notify the Investment Manager promptly of any other changes this undertaking substantially in the Portfolio terms set out in the Draft Announcement. We agree that particulars of which the Investment Manager would not otherwise have knowledge;
(ii) this undertaking to advise the Investment Manager of any specific investment restrictions applicable be disclosed in a circular sent to the Portfolio and to give the Investment Manager promptly written notice shareholders of any investments made for the Portfolio that the Company deems to UEL will be in violation of such objectives or restrictions;
(iii) form and substance reasonably satisfactory to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsus.
Appears in 1 contract
Undertakings. The Seller undertakes to the Bank that the Seller will:
(a) The Investment Manager agreesduly perform its obligations under each Contract of Sale which relate to, or may in any way affect, any Purchased Debt;
(b) not:
(i) amend or permit any amendment or change to furnish the Company with quarterly statements terms of a Contract of Sale (or the relevant Invoice or any document evidencing any Related Rights) which may affect any of the Portfolio, valued, for each security listed on Bank's rights in connection with any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape Purchased Debt; or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;
(ii) reduce or permit the reduction of the principal amount of any Purchased Debt, or enter into any discussions or communications to furnish statements to do or which contemplate any of the Company evidencing any purchases and sales for foregoing, unless approved by the Portfolio as soon as practicable after such transactions have taken placeBank in writing;
(iiic) to maintain strict confidence in regard upon becoming aware, immediately disclose to the Portfolio; Bank any Adverse Information;
(ivd) notify the Bank forthwith of any litigation or arbitration which is taking place, pending or threatened against the Seller in connection with a Contract of Sale to which any Purchased Debt relates;
(e) use the Seller's best endeavours to procure the Agreed Buyer's due and punctual payment to the Bank (or the Assignee) of all Purchased Debts and to protect the interests of the Bank as if the Seller had not sold the Purchased Debt;
(f) not permit any Security to be created or subsist over, nor sell, assign, transfer, discount or otherwise dispose of, any of the Seller's rights, title or interest in the Returned Goods, the Debt and/or to any Contract of Sale except pursuant to the Agreement or in the Bank's favour;
(g) as of the applicable Purchase Date for each Purchased Debt, reflect in the Seller's internal records that that Purchased Debt has been transferred, assigned, conveyed and sold to the Bank in accordance with the Agreement;
(h) comply with (i) all applicable laws relating to the Seller's dealings with the Agreed Buyer and the Purchased Debts and (ii) the Regulatory Compliance Statement;
(i) retain all documents, instruments and other records relating to the Purchased Debts;
(j) give the Bank accurate and up to date information in relation to the Agreement and any other information the Bank reasonably requests (including without limitation any personal information that the Bank is required to provide under any agreement between the Bank and any Authority) and immediately notify the Bank of any changes;
(k) keep all limits confidential;
(l) give the Bank any information or document in relation to the Company upon request Agreement or a written report with respect to Debt the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agreesBank requests within a reasonable time including:
(i) to advise the Investment Manager original or a certified copy of the investment objectives, policies Contract of Sale and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;all relevant Invoices; and
(ii) to advise the Investment Manager purchase orders, delivery orders and any other evidence of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictionsshipment;
(iiim) to maintain provide the Bank with copy of any other authorisation or other document, opinion or assurance which the Bank has Notified the Seller is necessary or desirable in strict confidence connection with the entry into and performance of, and the transactions contemplated by the Agreement or for use only with respect the validity and enforceability of the Agreement, in form and substance satisfactory to the Portfolio all investment advice given by the Investment Manager or KBIMABank;
(ivn) take independent legal, accounting and other advice in relation to take all actions necessary any Service, Transaction or the Agreement with the Bank (including, without limitation, in connection with any accounting treatment to effect delivery of Proxy solicitations be applied to the Investment Manager Transactions) and agrees that the Bank does not owe any advisory, fiduciary or similar duties in a timely mannerthis regard;
(o) deliver to the Bank:
(i) within 60 days from the end of each calendar year, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities status reports on behalf each of the Fund, and Seller's outstanding projects relevant to verify, the Debts the Bank has purchased or to cause such third party to verify, at such time, that may purchase under the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the ProxiesAgreement; and
(vii) not as soon as available, the Seller's audited consolidated financial statements;
(p) take such actions, at the Seller's own expense, to hold prevent and minimise any Losses (including any Losses on the Investment Managerpart of an Assignee) caused by any actual or prospective Buyer payment default and protect the rights, powers and interests of the Bank and an Assignee under the Agreement including, if requested by the Bank, co-operating with the Bank to stop Goods in transit;
(q) procure that each Guarantor acknowledges and signs the Agreement (including any of its directors, officers and employees, liable, under any circumstances amendment made to the Agreement from time to time);
(r) accept full responsibility for any error of judgment document, information or other action taken data the Seller imports on the Bank’s website;
(s) acknowledge that the Bank is not responsible for and has no duty to vet, filter or omitted otherwise edit any document, information or data imported by the Investment Manager Seller on the Bank’s website;
(t) comply with the provisions of Schedule 4 if the Bank sells, assigns or the Subadviser in the good faith exercise of their powers hereunder or arising out transfers a Debt to an Assignee; and
(u) ensure, where a Purchased Debt of an act Agreed Buyer is (or omission becomes) the subject of Insurance, that the Custodiandebts (whether Purchased Debt or otherwise, or deriving from the Contract of Sale or otherwise) of that Agreed Buyer are not the subject of any broker-dealer other insurance policy where the Seller is an insured party to that other insurance policy (whether or agent selected not that other policy was procured by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 ActSeller). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Sources: Receivables Purchase Terms
Undertakings. The Company undertakes:
(a) The Investment Manager agrees:
(iaccounting records) to furnish keep proper accounting records and ensure that each of its Subsidiaries does the Company with quarterly statements of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;
(ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedsame; and
(vb) (conduct of business) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission conduct its business (including collecting debts owed to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(bit) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely proper, orderly and efficient manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(vc) not (no cessation of business) not, without Fortrend Securities’ consent, to hold the Investment Manager, and cease conducting any of its directors, officers business and employees, liable, under not to significantly change the general character of any circumstances for business it conducts; and
(d) (information) to give Fortrend Securities any error of judgment document or other action taken information that Fortrend Securities reasonably requests from time to time; and
(e) (status certificates) on request from Fortrend Securities, to give Fortrend Securities a certificate signed by two of its directors which states whether a Termination Event or omitted Potential Termination Event, or Review Event is continuing; and
(f) (maintain authorisations) to obtain, renew on time and comply with the terms of each authorisation necessary for it to enter into the Transaction Documents to which it is a party, to comply with its obligations and exercise its rights under them and to allow them to be enforced; and Standby Subscription Agreement 28 September 2010 900999 v1/HN 16 (g) (continuous disclosure) to comply at all times with its obligations under Chapter 6CA of the Corporations Act and under the ASX Listing Rules and to notify ASX on the date a Drawdown Notice is given of the giving of the Drawdown Notice, the Drawing, the Drawdown Date and reasonable details of the pricing of the Shares to be issued under the Drawdown Notice and, if requested by Fortrend Securities, to immediately disclose to the Investment Manager market any inside information concerning the Company possessed by Fortrend Securities or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.Subscriber; and
Appears in 1 contract
Undertakings. 8.1 The Borrower undertakes to the Lender to comply with the following provisions of this Clause 8 at all times during the Security Period, except as the Lender may otherwise agree in writing:
8.1.1 the Borrower will (aand will procure that each Group Company will) The Investment Manager agreesobtain, effect and keep effective all permissions, licences, consents and permits which may from time to time be required: (i) in connection with the Charged Assets; and (ii) to conduct its business;
8.1.2 the Borrower will (and to the extent any Group Company has charged its assets pursuant to a Security Document, the Borrower shall procure that this Group Company shall) own only for its own account the Charged Assets free from all Security Interests and other interests and rights of every kind, except for those created by the Security Documents;
8.1.3 the Borrower will not (and shall procure that each Group Company will not) sell, assign, transfer or otherwise dispose of the Charged Assets, any of its material assets or any share therein and shall give immediate notice to the Lender of any judicial process or encumbrance affecting the Charged Assets except for the Charged Assets covered by the Danish Floating Charge which may be disposed of in the ordinary course of business in accordance with its terms;
8.1.4 the Borrower will provide to the Lender with:
(i) the following information by way of a monthly report:
(a) details of any changes to furnish the management/directors of any Group Company;
(b) details of any Group Company incorporated or acquired or proposed to be incorporated or acquired on or after the date of this Loan Agreement; and
(ii) such other information (financial or otherwise) as the Lender may reasonably request from time to time concerning any Group Company and its affairs (including, without limitation, information concerning the Charged Assets, its assets from time to time and any request for amplification or explanation of any item in the financial statements, budgets or other material provided by the Borrower under this Loan Agreement);
8.1.5 the Borrower will provide to the Lender all documents, confirmations and evidence required by the Lender to satisfy its “know your customer” requirements or similar identification checks in order to meet its obligations from time to time under applicable money laundering, or similar, laws and regulations;
8.1.6 the Borrower will provide the Lender with quarterly statements its monthly consolidated management accounts for the Group (each certified by a director) as fairly presenting the data reflected, at the earlier of: (i) thirty (30) calendar days of the Portfolioend of each calendar month; or (ii) when such information is provided to any shareholder or investor in the Borrower (to include notification of the commencement of litigation by or against the Borrower) and, valuedthe Borrower will also provide copies of any announcement which is proposed to be made public by the Borrower concerning dividends, annual or interim financial positions and affairs of the Borrower (or any Group Company);
8.1.7 the Borrower will provide the Lender with its consolidated annual audited (if applicable) financial statements for each security listed on any national securities exchange the Group at the last quoted sale price on earlier of (i) provision of such statements to any shareholder or investor in the valuation date reported on Borrower or (ii) within one hundred and eighty (180) calendar days of the composite tape orend of each financial year of the respective Group Company, in each case including a statement of operations, balance sheet, statement of cash flows and shareholders’ equity, certified by a firm of chartered accountants of recognised national standing;
8.1.8 the case Borrower will before the start of securities not so reported, each financial year and in any event within ten (10) calendar days of its approval by the principal exchange on which board of directors, provide the security is tradedLender with a consolidated budget for the Group showing: (i) a projected consolidated balance sheet as of the end of each financial year; (ii) a projected profit and loss account; and (iii) a cash flow forecast for the forthcoming financial year (a “Budget”);
8.1.9 the Borrower will provide the Lender with any revised version of a Budget previously provided to the Lender pursuant to Clause 8.1.8 within ten (10 calendar days) of the approval by the Borrower’s board of directors of such revised Budget;
8.1.10 the Borrower will provide the Lender with (and shall procure that each Group Company will provide the Lender with) copies of all board packs, notices, minutes, consents and other material that it provides to its board of directors at the same time they are delivered to the directors (the Lender understands that particularly sensitive information may from time to time be redacted from the copy documents it receives);
8.1.11 the Borrower will provide the Lender with (and shall procure that each Group Company will provide the Lender with) all documents dispatched by the Borrower and each Group Company to its shareholders, or its creditors generally at the same time as they are dispatched;
8.1.12 the Borrower will grant (and shall procure that each Group Company will grant) the Lender the right to have a representative to meet with its managing director and finance director once each quarter throughout the Security Period to review and discuss the operating performance and financial condition of the Group. For any such meetings held in person, the Lender understands that it shall pay its own travel costs and related expenses. In addition, upon the occurrence of an Event of Default, the Lender shall be entitled to have a representative attend all meetings of the Borrower’s (and each Group Company’s) board of directors and/or committee thereof in a non-voting observer capacity. The Borrower agrees (and shall procure that each Group Company) agrees to give notice of all board meetings to the Lender at the same time as to its directors;
8.1.13 the Borrower will (and will procure that each Group Company will) maintain in force and promptly obtain or renew, and will promptly send certified copies to the Lender of, all consents required:
(i) for any other security or asset in a manner determined in good faith by the Investment Manager Borrower and each Group Company to reflect perform its fair market valueobligations under the Loan Documents, as relevant;
(ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio validity or enforceability of the Loan Documents; and
(iii) for the Borrower and each Group Company to continue to own the Charged Assets from time to time, and the Borrower will, and will procure that each Group Company will, comply with the terms of all such consents;
8.1.14 the Borrower will notify the Lender as soon as practicable after such transactions it becomes aware of:
(i) the occurrence of an Event of Default; or
(ii) any matter which indicates that an Event of Default has occurred, may have taken placeoccurred or is likely to occur, and will thereafter keep the Lender fully up to date with all developments;
8.1.15 the Borrower will (and shall ensure that each Group Company will) maintain adequate risk protection through insurances on and in relation to its business and assets to the extent reasonably required on the basis of good business practice taking into account, inter alia, its (and any Group Company’s) financial position and nature of operations. All insurances must be with reputable independent insurance companies or underwriters;
8.1.16 the Borrower shall not (and shall ensure that no Group Company will) incur or allow to remain outstanding any Financial Indebtedness, except:
(i) under this Loan Agreement;
(ii) where a Group Company which has granted a Security Interest to the Lender over all or any of its material assets or shares is lending to or borrowing from the Borrower or another Group Company which has granted a Security Interest to the Lender over all or any of its material assets or shares;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use non-speculative hedging transactions entered into in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager ordinary course of the investment objectives, policies and restrictions of the Fund and of any changes business in connection with protection against interest rate or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMAcurrency fluctuations;
(iv) to take all actions necessary to effect delivery arising in the ordinary course of Proxy solicitations to the Investment Manager in business with suppliers of goods or services with a timely manner, including, but not limited to, effecting delivery maximum duration of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxiesninety (90) days; andor
(v) not permitted by the preceding paragraphs and the outstanding principal amount of which does not exceed €400,000 (or its equivalent in another currency or currencies) in aggregate for the Group at any time.
8.1.17 notwithstanding Clause 8.1.16, the Borrower shall not (and shall ensure that no Group Company will) incur or allow to hold remain outstanding any Financial Indebtedness owing to any shareholder of a Group Company (excluding other Group Companies) or any persons or companies related to them, unless such Financial Indebtedness is on terms (including interest, repayment and subordination) satisfactory to the Investment Manager, Lender;
8.1.18 the Borrower shall not (and shall ensure that no other Group Company will) create or permit to subsist any Security Interest over any of its directorsassets except for (i) any security entered into pursuant to any Security Document, officers and employees(ii) any security arising in the ordinary course of business (including without limitation any security deposits with landlords, liable, (iii) any security arising under any circumstances for any error retention of judgment title, hire purchase or other action taken conditional sale arrangement or omitted by the Investment Manager or the Subadviser arrangements having similar effect in respect of goods supplied to a Group Company in the good faith exercise ordinary course of their powers hereunder business and on the supplier’s standard or usual terms and not arising out as a result of an act any default or omission by any Group Company and (iv) any security (which is fully subordinated to any Security Interest granted to the Lender on terms acceptable to the Lender) securing debt the principal amount of which (when aggregated with the principal amount of any other debt which has the benefit of security given by any member of the CustodianGroup other than any permitted under paragraphs (i) to (iv) above) does not exceed €400,000 (or its equivalent in another currency or currencies);
8.1.19 the Borrower will not (and shall ensure that no other Group Company will) declare and/or make or agree to make (whether in the relevant constitutional documents or otherwise) any distribution by way of dividend or otherwise without the prior written consent of the Lender;
8.1.20 the Borrower shall be responsible for all costs associated with the Charged Assets including all tax assessments, or insurance premiums, operating costs and repair and maintenance costs as well as any fees associated with registering of any broker-dealer or agent selected by Security Interest granted in connection with this Loan;
8.1.21 the Investment Manager or KBIMA Borrower shall at the request of the Lender from time to time (and shall procure that each Group Company shall) promptly execute and deliver such further documents creating Security Interests in good faith favour of the Lender over such assets and in such form as the Lender may require in its discretion from time to time to: (i) secure all monies, obligations and liabilities of the Borrower and/or any Group Company to the Lender; (ii) facilitate the realisation of the Charged Assets; and/or (iii) exercise the powers conferred on the Lender or a commercially reasonable manner, excepting matters as to which the Investment Manager receiver or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have administrator appointed under any federal and state securities laws.Security Document, from time to time;
Appears in 1 contract
Sources: Loan Agreement (Orphazyme a/S)
Undertakings. 10.1 Fortune Brands shall not, and shall procure that none of its Affiliates or Concert Parties or its or their respective employees, agents, consultants or professional advisers shall, without the prior consent of Pernod ▇▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed):
10.1.1 take any material actions relating to the Acquisition or the Scheme (save as contemplated in this Agreement or the Framework Agreement);
10.1.2 acquire, offer to acquire, agree to acquire, dispose or offer or agree to dispose of a Shareholding in Allied Domecq (or take any action as a result of which the terms of the Scheme or the Acquisition may require to be varied (whether under the Code or otherwise);
10.1.3 enter into any agreement, arrangement or understanding (whether legally binding or not) or do or omit to do any act as a result of which: (i) any person may become obliged (whether under the Code or otherwise) to make any offer, acquisition or invitation to acquire a Shareholding in Allied Domecq, or (ii) the terms of the Scheme or the Acquisition may require to be varied (whether under the Code or otherwise)).
10.2 Fortune Brands acknowledges that it is a Concert Party of Pernod ▇▇▇▇▇▇ and that it has received legal advice as to the implications for the Acquisition of:
(a) The Investment Manager agrees:
(i) publicity surrounding the Acquisition attributable to furnish the Company with quarterly statements of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security it or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;
(ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedConcert Parties; and
(vb) dealings in Allied Domecq Shares by it or its Concert Parties.
10.3 Fortune Brands consents to indemnify the Fund against any lossesdisclosure of the information relating to it contained in the Press Announcement.
10.4 Fortune Brands agrees to procure that its directors will take responsibility (as between itself and Pernod ▇▇▇▇▇▇) for the information in the public documents issued in relation to the Scheme and the Acquisition which relates to Fortune Brands, claimsthe directors of Fortune Brands, damagestheir immediate families and persons connected with the directors of Fortune Brands. Fortune Brands, liabilities or expenses arising out Pernod ▇▇▇▇▇▇ and GAL each acknowledges however that it is their intention that Fortune Brands should be treated as a Concert Party of or based upon any untrue Pernod ▇▇▇▇▇▇ rather than a joint offeror for the purposes of the Code and accordingly no public statement of any material fact contained responsibility should be required.
10.5 Pernod ▇▇▇▇▇▇ shall not, and shall procure that none of its Affiliates or Concert Parties (other than Fortune Brands and its Concert Parties) or its or their respective employees, agents, consultants or professional advisers shall, without the prior consent of Fortune Brands acquire, offer to acquire, agree to acquire, dispose or offer or agree to dispose of a Shareholding in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required Allied Domecq which would trigger a requirement for a mandatory bid to be stated therein or necessary made by Pernod ▇▇▇▇▇▇ pursuant to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager Rule 9 of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsCode.
Appears in 1 contract
Sources: Transaction Co Operation Agreement (Fortune Brands Inc)
Undertakings. Each of the Creditors (other than the Trustees) and each Trustee (for itself and as trustee for the relevant Creditors) undertakes that except as otherwise expressly provided in this Agreement:
(a) The Investment Manager agreesit will not contest or challenge the validity, perfection, priority, effectiveness or enforceability of any or all of the Debt or any guarantee or Security granted or purported to be granted in respect thereof;
(b) to the extent that it is reasonably practicable to do so, each Creditor (provided, in the case of each of the Trustees that its costs and expenses in so acting have been paid or indemnified to its satisfaction) shall give all necessary instructions to any paying agents, registrars, custodians, nominees, book entry depositories or agents performing similar functions in order to implement and give effect at all times to the arrangements contemplated by this Agreement;
(c) to the extent that a Creditor receives any amount (or an increased amount) that it would not have received but for:
(i) any invalidity, failure to furnish the Company with quarterly statements perfect or unenforceability of any or all of the Portfolio, valued, for each security listed on Debt or any national securities exchange at guarantee or any Security granted or purported to be granted in respect of the last quoted sale price on Debt or the valuation date reported on failure to take Security over assets intended to be the composite tape or, in subject of any of the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market valueTransaction Security Documents;
(ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio as soon as practicable after such transactions have taken placefailure of any ranking of Security interests;
(iii) any of the Security granted or purported to maintain strict confidence be granted under the Transaction Security Documents being set aside in regard to the Portfolioconnection with any Insolvency Event; or
(iv) any claims being subordinated pursuant to provide applicable law, the relevant Creditor (and in the case of any Trustee, subject to Clause 18 (The Security Agent) and to Clause 19 (The Notes Trustee)) shall forthwith pay such amount or increased amount to the Company upon request a written report Security Agent for application in accordance with respect to the voting Clause 14.1 (Order of Proxies Application) as far as permitted by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedapplicable law; and
(vd) to indemnify it will not contest, challenge, impair or impede any Enforcement Action taken in accordance with the Fund against any losses, claims, damages, liabilities or expenses arising out terms of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, this Agreement (or any amendment delay or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) failure to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received Enforcement Action) by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsCreditor.
Appears in 1 contract
Sources: Intercreditor Agreement (Central European Media Enterprises LTD)
Undertakings. (Each of the Pledgors hereby undertakes not to enter into any legal instrument relating to, or granting any pledge, lien, encumbrance, or other interest or third party right over the Shares. In addition, except in accordance with the terms of the Financing Agreement and any other Secured Document and for as long as the Pledge remains in effect, each of the Pledgors hereby undertakes:
a) The Investment Manager agreesnot to dispose of, transfer or assign the Shares or take any other action with respect to the Shares (other than in accordance with the Permitted Reorganisation) that would jeopardize (i) any rights of the Pledgees under this Agreement or any other Secured Document or (ii) the validity and enforceability of the Pledge;
b) not to revoke or amend the board resolution referred to in Article 3b);
c) not to vote in favor of any resolution with regard to the Company whereby:
(i) the Existing Shares would be modified or altered; or
(ii) the transferability of the Shares would be restricted in any way;
d) to furnish promptly inform the Security Agent, in writing, (i) if a third party claims or pretends to own any of the Shares and (ii) of all circumstances concerning the Company with quarterly statements which might materially adversely affect the validity or enforceability of the PortfolioPledge;
e) to enter into and to procure the perfection of additional pledge agreements (at its own cost and expense), valuedif and to the extent that a pledge of certain Related Rights requires, as a matter of law, the execution and perfection of a specific pledge agreement for each security listed such Related Rights;
f) to do all acts and things necessary (at its own cost and expense) in case of a realization of the Pledge, and procure that any acts and things be done (at its own cost and expense) to properly effect any transfer of the Shares to a new owner, free of any pledge, lien, encumbrance, or other interest or third party right of any nature on any national securities exchange at of the last quoted sale price on the valuation date reported on the composite tape orShares so transferred and, in the case of securities not so reportedregistered shares, by to procure that the principal exchange on board of directors of the respective Company register such new owner as new shareholder of the Company with voting rights;
g) to promptly execute such further documents and do such further acts (at its own cost and expense) which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;
(ii) to furnish statements to the Company evidencing any purchases and sales Pledgees may reasonably require for the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf purpose of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf creation, perfection, protection and realization of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereofPledge.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Undertakings. Each Grantor agrees to be bound by the covenants set out in this Section 6 (Undertakings) until the Discharge of First Lien Obligations.
(a) The Investment Manager agreesExcept as otherwise permitted under the First Lien Documents, no Grantor will:
(i) change its name as it appears in official filings in the jurisdiction of its incorporation or organization;
(ii) do business under any name other than a name authorized under sub-paragraph (i) above;
(iii) change its chief executive office, principal place of business, corporate offices or warehouses or locations at which Collateral is held or stored, or the location of its records concerning the Collateral, in each case, from that set forth in the relevant schedules to furnish this Agreement;
(iv) change its jurisdiction of incorporation or organization or incorporate or organize in any additional jurisdictions;
(v) otherwise amend its charter documents or the Company with quarterly statements rights attaching to its Equity Interests or grant any waiver thereunder in any way that is materially adverse to the interests of the PortfolioFirst Lien Secured Parties;
(vi) directly or indirectly liquidate, valuedwind up, for each security listed on terminate, reorganize or dissolve itself (or suffer any national securities exchange at liquidation, winding up, termination, reorganization or dissolution) or otherwise wind up itself; or
(vii) cancel, terminate or permit the last quoted sale price on the valuation date reported on the composite tape orcancellation or termination of any of its charter documents; unless, in the case of securities not so reported, each of sub-paragraphs (i) through (iv) any such new location is in Hawaii and the relevant Grantor will have given the ABL Loan Collateral Agent at least thirty (30) days’ prior written notice of such change and all action necessary or reasonably requested by the principal exchange on which ABL Loan Collateral Agent to preserve and perfect any Lien with respect to the security is tradedCollateral will have been completed or taken.
(b) Each Grantor permits the ABL Loan Collateral Agent and its agents and representatives, during normal business hours and upon reasonable notice, to inspect Collateral, to examine and make copies of and abstracts from the records of the Collateral, and for to discuss matters relating to the Collateral directly with such Grantor’s officers and employees.
(c) [Reserved].
(d) At the ABL Loan Collateral Agent’s request, any other security or asset in a manner determined in good faith by Grantor must provide it with any information concerning the Investment Manager to reflect its fair market valueCollateral that it may reasonably request.
(e) Except as otherwise permitted under the First Lien Documents, each Grantor:
(i) must maintain sole legal and beneficial ownership of the Collateral;
(ii) must not permit any Collateral to furnish statements be subject to any Lien other than Permitted Security and must at all times warrant and defend the Company evidencing any purchases ABL Loan Collateral Agent’s Lien in the Collateral against all other Liens and sales for claimants (other than the Portfolio as soon as practicable after such transactions have taken placeLiens created under the ABL Loan Second Lien Security Agreement);
(iii) must not sell, assign, transfer, pledge, license, lease or encumber, or grant any option, warrant, or right with respect to, any of the Collateral, or agree or contract to maintain strict confidence in regard to do any of the Portfolio; foregoing;
(iv) to provide to the Company upon request a written report with must not waive, amend or terminate, in whole or in part, any accessory or ancillary right or other right in respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedany Collateral; and
(v) to indemnify must not take any action which would result in a reduction in the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement value of any material fact contained Collateral.
(f) Except as otherwise permitted under both the First Lien Documents, each Grantor must pay when due (and in any registration statement, prospectus, proxy statement, report or other document, case before any penalties are assessed or any amendment Lien is imposed on any Collateral) all taxes, assessments and charges imposed on or supplement theretoin respect of the Collateral and all claims against the Collateral, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent that such untrue statement or omission was made being contested in reliance upon good faith and by appropriate proceedings being diligently conducted and with respect to which reserves are being maintained in conformity accordance with information furnished by the Investment Manager to the Company specifically for use generally accepted accounting principles in the preparation thereofUnited States of America.
(bg) The Company agrees:Except as otherwise permitted under the First Lien Documents, in any suit, legal action, arbitration or other proceeding involving the Collateral or the ABL Loan Collateral Agent’s Lien, each Grantor must take all lawful action to avoid impairment of the ABL Loan Collateral Agent’s Lien or the ABL Loan Collateral Agent’s rights under this Agreement or the imposition of a Lien on any of the Collateral.
(h) [Reserved].
(i) to advise the Investment Manager [Reserved].
(j) Annually on each anniversary of the investment objectivesdate of this Agreement and from time to time on written demand from the ABL Loan Collateral Agent, policies and restrictions each Grantor will deliver to the ABL Loan Collateral Agent (i) a Security Supplement executed by an Authorized Officer of such Grantor, together with supplements to all of the Fund and of any changes Schedules attached to this Agreement or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly a written notice of any investments made for the Portfolio that the Company deems to be in violation confirmation executed by an Authorized Officer of such objectives or restrictions;
(iii) to maintain Grantor confirming that there has been no change in strict confidence the information provided in this Agreement since the date of the execution and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to this Agreement or the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf date of the Fund, and most recent Security Supplement or written confirmation delivered pursuant to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
this Section 6.1(j) (v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 ActUndertakings). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Sources: Abl Loan First Lien Security Agreement (Par Petroleum Corp/Co)
Undertakings. The Pledgor undertakes
(a) The Investment Manager agreesto notify the Security Agent promptly of any change in the partnership of, or the capital contributions to, the Company or of any change in the partnership agreement (Gesellschaftsvertrag) or any registrations in the commercial register other than with respect to holders of a statutory power of attorney (Prokura);
(b) to notify the Security Agent promptly of any event or circumstance other than interpretation of law which affects or is reasonably likely to affect the validity or enforceability of the security interest granted hereunder;
(c) to effect promptly any payments to be made to the Company in respect of the Interests;
(d) at its own expense, to execute and do all such assurances, acts and things as the Security Agent may reasonably require:
(i) to furnish the Company with quarterly statements of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which perfecting or protecting the security is traded, and for any other security or asset in a manner determined in good faith intended to be afforded by the Investment Manager to reflect its fair market value;this Agreement; and
(ii) if the Pledges have become enforceable pursuant to furnish statements Clause 6.1, for facilitating the realisation of all or any part of the Interests which are subject to this Agreement and the exercise of all powers, authorities and discretions vested in the Security Agent, and in particular to execute all transfers, conveyances, assignments and releases of that property whether to the Company evidencing any purchases Security Agent or to its nominees and sales for give all notices, orders and directions which the Portfolio as soon as practicable after such transactions have taken placeSecurity Agent may reasonably think expedient;
(iiie) at the Security Agent’s reasonable request, to furnish to the Security Agent such information concerning the Interests as is available to the Pledgor, to permit the Security Agent and its designees to inspect, audit and make copies of and extracts from all records and all other papers in the possession of the Pledgor which pertain to the Interests on reasonable notice and during normal business hours, and, upon the reasonable request of the Security Agent, to deliver to the Security Agent copies of all such records and papers;
(f) to maintain strict confidence in regard to refrain from any acts or omissions which might have an adverse effect on the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager validity or KBIMA on behalf enforceability of the Fund. The Investment Manager shall provide such additional reports Pledges or the effect of which results in the Interests ceasing to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedexist; and
(vg) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to that all Future Interests will be stated therein or necessary fully paid and that there will be no obligation for a limited partner to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereofadditional contributions.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Undertakings. Subject to the terms of the Note and the Note Purchase Agreement, the Pledgor hereby undertakes for as long as the Pledge remains in effect:
(a) The Investment Manager agreesto promptly do all acts and things necessary to ensure that it remains registered as the shareholder of the Shares in the share register (Aktienbuch) of the Company;
(b) to ensure that no action is taken the effect of which would be any of the Shares becoming intermediated securities (Bucheffekten) pursuant to the FISA;
(c) not to take any action with respect to the Pledged Assets that would, taken as a whole, materially and adversely affect (i) any rights of the Pledgees under this Agreement or any other Finance Document or (ii) the validity and enforceability of the Pledge;
(d) to promptly deliver to the Collateral Agent any and all acknowledgements of debt (Schuldscheine) relating to the Related Rights;
(e) without the Collateral Agent's prior written consent, not to enter into any legal instrument relating to, or granting any form of security interest, lien, encumbrance or other interest or third party right over, or dispose of, transfer or assign the Pledged Assets, or take any other action having an Adverse Effect, in all cases except pursuant to the Canadian Security Documents;
(f) to exercise any and all subscription rights assigned to the Pledgor relating to the Shares and to take all such other actions as are necessary for the Pledgor to remain the owner of 100 per cent. of all shares and other equity securities in the Company; and
(g) without the Collateral Agent's prior written consent, not to take any action or vote in favor of any resolution with regard to the Company whereby:
(i) to furnish the Company with quarterly statements any dividend declaration, distribution or payment of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security Dividends would be unreasonably or asset in a manner determined in good faith by the Investment Manager to reflect its fair market valuematerially altered;
(ii) to furnish statements to the Company's legal form (inter alia, by merger (except in cases where the Company evidencing any purchases and sales for is the Portfolio as soon as practicable after such transactions have taken place;surviving entity), liquidation or transformation) or substance (e.g., by spin-off) would be modified or altered; or
(iii) the Company's articles of incorporation (Statuten) would be amended and such amendment would have an Adverse Effect (e.g., current corporate purpose provision would be materially amended, Existing Shares would be modified or altered, transferability of Shares would be restricted, voting proxies may only be granted to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf shareholders of the Fund. The Investment Manager Company), Share Pledge Agreement provided that the foregoing undertakings shall provide such additional reports to not limit or restrict the Company concerning Pledgor from taking any action which is permitted under the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, Finance Documents save if and to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by action would affect the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectivesvalidity, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely mannerranking, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verifypriority, or to cause such third party to verify, at such time, that the number enforceability of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsthis Pledge.
Appears in 1 contract
Undertakings. The Pledgor undertakes:
(a) The Investment Manager agreesto notify the Security Agent promptly of any change in the shareholding in, or the capital contributions to, the Company or of any change in the articles of association (Satzung) or the registration of the Company in the commercial register other than with respect to holders of a statutory power of attorney (Prokura);
(b) to notify the Security Agent promptly of any event or circumstance other than interpretation of laws which affects or is reasonably likely to affect the validity or enforceability of the security interest granted hereunder;
(c) to effect promptly any payments to be made to the Company in respect of the Shares;
(d) at its own expense, to execute and do all such assurances, acts and things as the Security Agent may reasonably require:
(i) to furnish the Company with quarterly statements of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which perfecting or protecting the security is traded, and for any other security or asset in a manner determined in good faith intended to be afforded by the Investment Manager to reflect its fair market value;this Agreement; and
(ii) if the Pledges have become enforceable pursuant to furnish statements Clause 7.1, for facilitating the realisation of all or any part of the Shares which are subject to this Agreement and the exercise of all powers, authorities and discretions vested in the Security Agent, and in particular to execute all transfers, conveyances, assignments and releases of that property whether to the Company evidencing any purchases Security Agent or to its nominees and sales for give all notices, orders and directions which the Portfolio as soon as practicable after such transactions have taken placeSecurity Agent may reasonably think expedient;
(iiie) at the Security Agent’s reasonable request, to furnish to the Security Agent such information concerning the Shares as is available to the Pledgor, to permit the Security Agent and its designees to inspect, audit and make copies of and extracts from all records and all other papers in the possession of the Pledgor which pertain to the Shares on reasonable notice and during normal business hours, and, upon the reasonable request of the Security Agent, to deliver to the Security Agent copies of all such records and papers;
(f) to maintain strict confidence in regard to refrain from any acts or omissions which might have an adverse effect on the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager validity or KBIMA on behalf enforceability of the Fund. The Investment Manager shall provide such additional reports Pledges or the effect of which results in the Shares ceasing to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedexist; and
(vg) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to that all Future Shares will be stated therein or necessary fully paid and that there will be no obligation for a Shareholder to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereofadditional contributions.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Undertakings. 9.1 The Issuer undertakes to the Bondholders that at any time and from time to time for so long as any Bond remains outstanding, unless with the prior written consent of the Bondholders:
(a) The Investment Manager agreesthe Issuer shall continue and shall procure CAAM to continue to be primarily engaged in the core businesses in which it was engaged as at the date of the Subscription Agreement;
(b) the Issuer has and shall continue from time to time to keep available for transferring, free from pre-emptive rights, sufficient Shares held by it to satisfy in full the transfer of the Exchangeable Shares and shall ensure that all Shares delivered on exchange of any of the Bonds will be fully-paid and non-assessable;
(c) the Issuer shall procure CAAM not to modify the rights attaching to the Shares with respect to voting, dividends or liquidation nor issue any other class of ordinary share capital carrying any rights which are more favourable than the rights attaching to Shares but nothing in this Condition 9.1(c) shall prevent (i) a consolidation or subdivision of the Shares or the conversion of any Shares into stock or vice versa, (ii) a modification to the rights attaching to the Shares which is not, in the opinion of the Approved Financial Adviser, materially prejudicial to the interests of the Bondholders, (iii) the conversion of Shares into, or the issue of any Shares in, uncertificated form (or the conversion of Shares in uncertificated form to certificated form), (iv) the amendment of the articles of association of CAAM to enable title to securities of CAAM (including Shares) to be evidenced and transferred without a written instrument, or (v) any other alteration to the articles of association of CAAM made in connection with the matters described in this Condition 9.1 or which are supplemental or incidental to any of the foregoing (including amendments made to enable or facilitate procedures relating to such matters and amendments dealing with the rights and obligations of holders of securities (including Shares) dealt with under such procedures);
(d) CAAM shall at all times and from time to time be a wholly-owned Subsidiary of the Issuer;
(e) the Issuer will pay the expenses of the delivery of the Shares arising on exchange of the Bonds;
(f) subject to these Conditions, the Issuer will procure CAAM not to issue or pay up any securities, in either case by way of capitalisation of profits or reserves unless, in any such case, it (subject to the provisions of Condition 8.10) gives rise to an adjustment of the Exchange Price, and the Issuer shall at its own expense request the Approved Financial Adviser (acting as expert) to determine as soon as practicable what adjustment (if any) to the Exchange Price is fair and reasonable to take account of the capitalisation of profits or reserves, and if the adjustment would result in a reduction in the Exchange Price, the date on which such adjustment should take effect;
(g) the Issuer shall ensure that all Exchangeable Shares shall be duly and validly issued, fully paid and registered, and free from Encumbrances and all such Shares shall rank pari passu in all respects with the fully paid Shares in issue on the relevant Registration Date and shall accordingly entitle the holders thereof to participate in full in all dividends or
(h) as soon as possible and in any event not later than 10 Business Days after the approval by the board of directors of CAAM of any event which give rise to adjustments pursuant to Condition 8.10 or other provisions of these Conditions (or, if later, as soon as the relevant adjustment thereunder can reasonably be determined), give notice to the Bondholders advising them of the date on which the relevant adjustment of the Exchange Price is to become effective, the size of adjustment on the Exchange Price and the effect (if any) on the Bondholders' right to exercise its Exchange Right herein;
(i) the Issuer shall and shall procure its Subsidiaries to:
(i) to furnish the Company maintain its corporate existence and conduct its business in compliance in all material respects with quarterly statements of the Portfolioall applicable laws, valuedrules, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, codes and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market valueregulations;
(ii) maintain in full force and effect all authorisations required from any governmental or other authority or from any shareholders or creditors of the Issuer for or in connection with the execution, validity and performance of the Bonds and the other Transaction Documents, and take immediate steps to furnish statements to the Company evidencing obtain and thereafter maintain in full force and effect any purchases and sales other authorisations which may become necessary or advisable for the Portfolio as soon as practicable after such transactions have taken placepurpose stated therein;
(iii) promptly inform the Bondholders of any occurrence of which it becomes aware which might materially and adversely affect its ability to maintain strict confidence in regard to perform its obligations under the Portfolio; Bonds;
(iv) not take any step with a view to effecting dissolution, liquidation or winding-up of the Issuer or any of its Subsidiaries;
(v) not sell, transfer or dispose, whether through one or more transactions within one financial year, all or any substantial assets of the Group which accounts for more than 75%of the total value of the assets of the Group as shown in the latest published consolidated financial statements of the Group;
(vi) not, authorise, declare, make or pay any Capital Distribution;
(vii) not do any act that would cause or otherwise suffer a Material Adverse Effect in its business;
(j) the Issuer will notify the Bondholders in writing immediately upon becoming aware of the occurrence of any Event of Default or any event or circumstance which would, with the giving of notice and/or the lapse of time and/or the issuing of a certificate, become an Event of Default;
(k) ensure and maintain that its Net Asset Value shall not be less than HK$500,000,000 at any given time and the Issuer shall, promptly upon reasonable request by the Bondholders and to the extent permissible by applicable laws, supply to the Bondholders with each set of consolidated financial statements published by the Issuer in respect of any relevant period (which shall be the financial period ended immediately prior to the relevant date when the Issuer's Net Asset Value is being computed) and/or as at the relevant date/time, a certificate setting out, in reasonable detail and signed by two directors of the Issuer, computations as to compliance with this Condition 9.1(k) as at the date as at which consolidated financial statements were drawn up in respect of such relevant period and/or any other relevant date/time;
(l) without prejudice to the Issuer's negative pledge under Condition 5, save and except for any indebtedness, Encumbrance or Security interests in respect of any indebtedness subsisting as at the date hereof and its renewal, the Issuer shall procure CAAM not to incur any indebtedness or create or constitute any Security interests or other form of Encumbrances of any kind in respect of any indebtedness that in aggregate exceeds HK$200,000,000 and which is due earlier than the Maturity Date;
(m) without prejudice to the Issuer's negative pledge under Condition 5 and save as contemplated under the Subscription Agreement and the Transaction Documents, the Issuer shall procure CAAM not to incur any other indebtedness or create or constitute any other financing for, or Security interests or other form of Encumbrances of any kind over any of the assets;
(n) the Issuer shall provide or cause to provide to the Company upon request Bondholders:
(i) the audited annual financial statements and annual management accounts of CAAM within 90 days after the end of CAAM's financial year;
(ii) all documents necessary for the Bondholders to comply with the relevant legal and regulatory requirements (including, for the avoidance of doubt, requirements under the Listing Rules to which any Bondholder or its holding company is subject and/or other internal requirements or procedures put in place by any Bondholder for compliance, internal control and/or related regulatory or ancillary purpose) for being the holders of the Bonds, which shall be provided or cause to be provided to the financial advisers to the Bondholders at the same time when such documents are provided to the Bondholders;
(iii) within 60 days after 30th June and 90 days after 31st December of every year, a written report confirmation that all the terms and conditions herein and under the other Transaction Documents are fulfilled and/or complied with.
9.2 If an offer is made to all holders of Shares (or such holders other than the offeror and/or any Issuer controlled by the offeror and/or persons associated or acting in concert with respect the offeror) to acquire all or a portion of the Shares or if any person proposes a scheme with regard to such acquisition, it shall and shall procure CAAM to forthwith give notice of such offer or scheme to the voting Bondholders at the same time as any notice thereof is sent to its Shareholders (or as soon as practicable thereafter) stating that details concerning such offer or scheme may be obtained from the specified office of Proxies the Issuer and, where such an offer or scheme has been recommended by the Investment Manager Board or KBIMA on behalf where such an offer has become or been declared unconditional in all respects, use its best endeavours to procure that a like offer or scheme is extended to the Bondholders and the holders of any Exchangeable Shares issued during the period of the Fundoffer or scheme.
9.3 The Issuer shall procure CAAM not to make any reduction or redemption of share capital, share premium account or capital redemption reserve involving the repayment of money to the Shareholders (other than to the Shareholders having the right on a winding-up to a return of capital in priority to the holders of shares) or reduce any uncalled liability in respect thereof unless, in any such case, such reduction or redemption is permitted by applicable law, and (a) the same gives rise (or would, but for the provisions of Condition 8.10 give rise) to an adjustment of the Exchange Price in accordance with Condition 8.10 or (b) the Bondholders have given a prior written consent.
9.4 The Issuer shall procure CAAM not to take any action which prevents the transfer of its shares generally unless, under the laws of Hong Kong and Hong Kong and the articles of association of CAAM as then in effect, the Bonds may be exchanged legally for Shares and the Shares so exchanged may be transferred at all times during the period of such closure. The Investment Manager Issuer shall provide such additional reports not and shall procure CAAM not to the Company concerning the voting take any action which prevents any exchange or delivery of Proxies Shares in respect thereof.
9.5 The Issuer shall not enter into any deed, agreement, assignment, instrument or documents whatsoever binding on behalf it which may result in any breach of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, memorandum and articles or any amendment or supplement thereto, or arising out of or based upon the terms and conditions of the Bonds and/or other Transaction Documents.
9.6 The Issuer shall procure CAAM not to issue any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, further equity securities if and to the extent that such untrue statement issuance will result in the Issuer being unable to comply with the adjustment provisions of Condition 8.10 and its obligations to deliver Shares under these Conditions.
9.7 If CAAM declares, makes or omission was made in reliance upon pays any cash dividend or distribution of any kind at any time when any of the Bonds remains outstanding, the Issuer shall apply and use any such dividend or distribution received or receivable by the Issuer from CAAM solely to redeem the Bonds then outstanding, and the Issuer shall, immediately and in conformity with information furnished by any event within 14 days after receipt of such dividend or distribution, exercise the Investment Manager right of early redemption available to the Company specifically for use in Issuer as the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager issuer of the investment objectivesBonds, policies and restrictions of the Fund and of any changes or modifications thereto and without prejudice to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsaccordance with Condition 7.2.
Appears in 1 contract
Undertakings. The Pledgor shall (except as provided in the Credit Agreement):
(a) The Investment Manager agrees:not create, attempt to create or permit to subsist any Security (other than the Pledge) on, over or with respect to any of the Pledged Property or the right to receive or be paid the same or agree to do so;
(b) not sell, transfer, lend, assign, part with its interest in, dispose of, grant any option in respect of or otherwise deal with any of its Rights, title and interest in and to the Pledged Property, or agree to do any of the foregoing (otherwise than pursuant to this Pledge);
(c) not take or omit to take any action which act or omission could materially adversely affect or diminish the value of any of the Pledged Property;
(d) ensure that there are no moneys or liabilities outstanding in respect of any of the Pledged Property;
(e) ensure that the Original Shares, any Further Shares and any Shares comprised in any Derived Assets are free from any restriction on transfer or rights of pre-emption;
(f) take all action within its power to procure, maintain in effect and comply with all the terms and conditions of all approvals, authorisations, consents and registrations necessary or appropriate for anything provided for on its part in this Pledge;
(g) ensure that the Pledge will at all times be a legally valid and binding first fixed security over the Pledged Property ranking in priority to the interests of any liquidator, administrator or creditor of the Pledgor;
(h) without prejudice to clause 5(e), punctually pay all calls, subscription moneys and other moneys payable on or in respect of any of the Pledged Property and indemnify and keep indemnified the Administrative Agent and its nominees against any cost, liabilities or expenses which it or they may suffer or incur as a result of any failure by the Pledgor to pay the same;
(i) deliver to furnish the Company Administrative Agent a copy of every circular, notice, report, set of accounts or other document received by the Pledgor in respect of or in connection with quarterly statements any of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, Pledged Property forthwith upon receipt by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market valuePledgor of such document;
(iij) to furnish statements promptly deliver to the Company evidencing any purchases and sales for the Portfolio as soon as practicable after Administrative Agent all such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company information concerning the voting of Proxies on behalf of Pledged Property as the Fund as shall be Administrative Agent may reasonably requestedrequest from time to time; and
(vk) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio ensure that the Company deems to be in violation does not issue any shares after the date of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsthis Pledge.
Appears in 1 contract
Sources: Credit Agreement (Plexus Corp)
Undertakings. (a) 11.1 The Investment Manager agreesChargor hereby undertakes with the Chargee that while there shall subsist any security constituted by or pursuant to this Debenture, the Chargor will at all times:
(i) 11.1.1 punctually pay or cause to furnish the Company with quarterly statements be paid all rents, rates, taxes, duties, assessments and other outgoings assessed or payable in respect of the PortfolioCharged Property or any part thereof;
11.1.2 repair and keep and procure to be kept in good and substantial repair and condition, valuedconsistent with industry standards, all buildings, structures and other erections, trade and other fixtures, fixed and other plant and machinery forming part of the Charged Property and will not, except for the purpose of renovation, repair or refurbishing or in the ordinary course of business demolish, pull down, remove or dismantle any material part or parts of the foregoing without the prior consent in writing of the Chargee and will permit the Chargee, its officers, employees and agents free access at all reasonable times to view the state and condition of the foregoing and to carry out any necessary repairs thereto but (in either case) without becoming liable to account as mortgagee in possession;
11.1.3 forthwith after being required to do so by the Chargee make good any failure to repair in accordance with Clause 11.1.2 any want of repair in all buildings, structure and other erections, trade and other fixtures, fixed plant and other machinery forming part of the Charged Property;
11.1.4 comply with all obligations under any statute and any bye-laws, regulations or requirements of any competent authority and whether now or hereafter in existence so far in each security listed case as the same affect any land or buildings forming part of the Charged Property or the occupation or user thereof or to the fixtures, fittings, plant, machinery, equipment, installation and apparatus therein or thereon;
11.1.5 at all times to observe and perform the provisions of any planning legislation and comply with any conditions attached to any planning permissions relating to or affecting any part of the Charged Property and shall not, without the prior consent in writing of the Chargee which consent shall not be unreasonably withheld, make any application for planning permission or implement any planning permission so obtained;
11.1.6 forthwith after receipt of the same, give full particulars to the Chargee of any notice, order, direction, designation, resolution or proposal having application to the Charged Property or the area in which it is situate which may be given or made by any planning authority or other public or competent body or authority whatever and, if reasonably required by the Chargee, forthwith and at the Chargor's cost, take all necessary steps to comply with such notice, order, direction, designation, resolution or proposal or otherwise and at the reasonable request of the Chargee and at the cost of the Chargor, make such objection or representation against or in respect of or relating to such notice, order, direction, designation, resolution or proposal as aforesaid as the Chargee shall deem expedient;
11.1.7 pay the rents reserved by and observe and perform all covenants, stipulations and obligations reserved by or contained in any lease, agreement for lease or tenancy agreement under or subject to which any part of the Charged Property may be held and neither take any step nor omit to take any step whatsoever if, in consequence of the taking of or omitting to take such step, such lease, agreement for lease or tenancy agreement may be surrendered or forfeited or the rent thereunder may be increased;
11.1.8 observe and perform all restrictive and other covenants, stipulations and obligations for the time being affecting any part of the Charged Property in any material respect or the use or the enjoyment of the Charged Property or any part thereof and duly and diligently enforce all restrictive and other covenants, stipulations, agreements and obligations benefiting any part of the Charged Property and shall not waive, release or vary (or agree to do so) the obligations of any party thereto;
11.1.9 not without the prior consent in writing of the Chargee which consent shall not be unreasonably withheld, confer on any national securities exchange at other person any right or licence to assign or sub-let any part of the last quoted sale price on Charged Property or grant, create or permit to be acquired any easement, right or privilege relating to or affecting the valuation date reported on Charged Property or any part thereof;
11.1.10 indemnify the composite tape orChargee (and as a separate covenant any Receiver or Receivers appointed by it pursuant to the terms of this Debenture) against all existing and future rents, taxes, duties, fees, renewal fees, charges, assessments, impositions and outgoings whatsoever (whether imposed by deed or statute or otherwise and whether in the case nature of securities not so reported, capital or revenue and even though of a wholly novel character) which now or at any time during the continuance of the security constituted by or pursuant to this Debenture are payable in respect of the Charged Property or any part thereof or by the principal exchange on which the security is traded, and for any other security owner or asset in a manner determined in good faith by the Investment Manager to reflect its fair market valueoccupier thereof;
(ii) to furnish statements to the Company evidencing 11.1.11 not exercise any purchases and sales for the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports powers reserved to the Company concerning the voting of Proxies a mortgagor, whether conferred on behalf pledgees, mortgagees and/or chargees by any applicable law or statute or otherwise grant or agree to grant any lease or tenancy of the Fund as shall be reasonably requestedCharged Property or any part thereof or surrender or accept or agree to accept a surrender of any lease or tenancy thereof other than in the ordinary course of its business; and
(v) to indemnify 11.1.12 except with the Fund against prior consent in writing of the Chargee which consent shall not be unreasonably withheld, not allow any losses, claims, damages, liabilities or expenses arising out of or based upon person any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report licence or other document, right to occupy or share possession of the Charged Property or any amendment part thereof (save as may already exist) other than in the ordinary course of its business.
11.2 If any such sums as are referred to in Clause 11.1.10 shall be paid by the Chargee (or supplement thereto, any such Receiver or arising out Receivers) the same shall be repaid by the Chargor on demand with interest at the rate specified in Clause 2.3 from the time or respective times of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, same having been demanded to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereofdate of reimbursement.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Sources: Debenture (Combinatorx, Inc)
Undertakings. 9.1 The Borrower hereby undertakes and agrees with the Lender throughout the continuance of this Agreement and so long as any sum remains owing hereunder and under the Security Document by the Borrower and the Security Party to the Lender that the Borrower shall:
(a) The Investment Manager agreessupply or procure the supply to the Lender promptly on request, such financial or other information relating to it as the Lender may from time to time request;
(b) unless otherwise agreed by the Lender, promptly repay the Secured Indebtedness and other sum of monies upon the receipt by any of the Group Companies or their ultimate beneficial owners pursuant to this Agreement and the Security Documents;
(c) keep proper records and books of account in respect of the business of itself;
(d) ensure that all accounts to be delivered by it under this Agreement are prepared in accordance with the applicable laws and accounting principles and practices generally accepted in the Cayman Islands and consistently applied and have been prepared, examined, reported on and approved in accordance with its memorandum and articles of association or equivalent constitutional documents and the applicable laws and, give a true and fair view of the financial condition and operations of the Borrower for the period indicated and as at the last day of that period;
(e) promptly inform the Lender in writing of :
(i) to furnish any occurrence of which it becomes aware which might affect the Company with quarterly statements ability of the Portfolio, valued, for each security listed on Borrower to perform any national securities exchange at of the last quoted sale price on obligations under this Agreement and any of the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market valueSecurity Documents;
(ii) to furnish statements to any loss or damage or any Force Majeure Event which has an adverse effect on the Company evidencing any purchases and sales for cashflow or operations of the Portfolio as soon as practicable after such transactions have taken placeBorrower;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement occurrence of any material fact contained in any registration statement, prospectus, proxy statement, report Event of Default or other document, or any amendment or supplement thereto, or arising out prospective Event of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMADefault;
(iv) any litigation, arbitration or administrative proceeding taking place or pending or may take place or threaten to take place against any of the Group Companies;
(v) any change or proposed change in the shareholders or directors of and in the ownership (legal or beneficial) of the Borrower or any of the Group Companies;
(vi) any proceeding as referred to in Clause 8.1(f); or
(f) maintain its corporate existence and conduct its business in a proper and efficient manner and in compliance with all actions laws, regulations, authorisations, agreements and obligations and pay all taxes imposed on it when due;
(g) maintain in full force and effect all such authorisations as are referred to in Clause 8.1(e), and take immediate steps to obtain or cause to be obtained and thereafter maintain in full force and effect any other authorisations which may become necessary or advisable for the purposes stated therein;
(h) ensure that its obligations under this Agreement shall at all times be secured under the Security Documents and rank in priority to effect delivery all other present and future indebtedness of Proxy solicitations the Borrower, except for those obligations which are mandatorily preferred by law and not by contract;
(i) send to the Investment Manager Lender as many copies as it may reasonably require of every audited and unaudited balance sheet, audited and unaudited profit and loss account, report, notice or like document issued by it to its shareholders, in each case as soon as practicable;
(j) punctually pay all sums due from it and otherwise comply with its obligations under this Agreement and the Security Documents to which it is a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxiesparty; and
(vk) use the Facility exclusively for the purposes specified in Clause 2.2.
9.2 The Borrower further irrevocably undertakes and agrees with the Lender throughout the continuance of this Agreement and so long as any sum remains owing hereunder by the Borrower to the Lender that the Borrower shall not to hold unless expressly permitted herein or the Investment Manager, and Lender otherwise agrees in writing:
(a) issue shares or other securities or purchase or redeem any of its directorsissued shares or other securities or reduce its share capital or make a distribution of assets or other capital distribution to its shareholders or make any repayment of loan or other indebtedness owing to any of its shareholders;
(b) change the nature of its business or sell, officers and employeestransfer or otherwise assign, liable, under deal with or dispose of or enter into arrangement with similar effect of a disposal in relation to all or any circumstances part of its business or assets or revenues other than in the normal course of its business;
(c) make or grant any loan or advance or guarantee or in any other manner be or become directly or indirectly or contingently liable for any error of judgment indebtedness or other action taken obligation of any other person other than in the normal course of business of that company;
(d) save as contemplated under this Agreement and/or any Security Documents, create or omitted attempt or agree to create or permit to arise or exist any Encumbrance over all or any part of its property, assets or revenues other than in its normal course of business;
(e) save as contemplated under this Agreement and/or any Security Documents, borrow or raise money or credit or permit to subsist or incur any indebtedness other than in the normal course of business of that company;
(f) save as contemplated under this Agreement and/or any Security Documents, enter into any agreement or obligation or make any acquisitions which is likely to adversely affect its financial or business conditions;
(g) declare or pay out any dividend or similar distribution by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out Company, whether of an act income or omission capital nature and whether in cash or in specie or make any payment whatsoever to its members;
(h) enter into or effect any merger, reorganisation or consolidation with any other person or enter into any arrangement for or in respect of the Custodiansuch merger, reorganisation or consolidation;
(i) amend or supplement its memorandum and its articles of any broker-dealer association or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall equivalent constitutional documents in any way constitute a waiver which may affect its ability to perform its obligations hereunder and under the Security Documents;
(j) transfer, sell, dispose or limitation otherwise create Encumbrances or deal with any of the shares, charged assets, options, warrants or other securities convertible into shares of the Borrower, or enter into any agreement to do so (except as contemplated in the Share Pledge) and shall not issue and allot or agree to issue and allot any new shares, options, warrants or other securities convertible into shares in the capital of each of them or enter into any agreement to do so or alter its share capital in any way, including without limitation, any consolidation or sub-division of its shares or issue of any rights shares or equity share capital which is of a class different from its shares, whether or not ranking pari passu in any respect with its other shares; take any step with a view to bankrupt, dissolution, liquidation or winding-up (as appropriate); and
(k) do any act or things or refrain from doing any act or things which may affect or jeopardize the undersigned Lender’s rights, powers, interests or otherwise under this Agreement or any of the Security Documents.
9.3 The Borrower shall cause and procure the Security Party to further irrevocably undertake and agree with the Lender throughout the continuance of this Agreement and so long as any sum remains owing hereunder by the Borrower to the Lender that the Security Party shall not, unless expressly permitted herein or the Lender otherwise agrees in writing:
(a) issue shares or other securities or purchase or redeem any of its issued shares or other securities or reduce its share capital or make a distribution of assets or other capital distribution to its shareholders or make any repayment of loan or other indebtedness owing to any of its shareholders;
(b) make or grant any loan or advance or guarantee or in any other manner be or become directly or indirectly or contingently liable for any indebtedness or other obligation of any other person other than in the normal course of business of that company;
(c) borrow or raise money or credit or permit to subsist or incur any indebtedness other than in the normal course of business of that company;
(d) enter into any agreement or obligation or make any acquisitions which are likely to adversely affect its financial or business conditions;
(e) declare or pay out any dividend or similar distribution, whether of an income or capital nature and whether in cash or in specie or make any payment whatsoever to its shareholders;
(f) enter into or effect any merger, reorganization or consolidation with any other person or enter into any arrangement for or in respect of such merger, reorganization or consolidation, or
(g) do any act or things or refrain from doing any act or things which may have affect or jeopardize the Lender’s rights, powers, interests or otherwise under the Security Documents, including but not limited to rescinding or altering any federal passed board resolutions in favor of the Lender;
(h) transfer, sell, dispose or otherwise create Encumbrances or deal with any of the shares, assets, options, warrants or other securities convertible into shares of the Talem Australia, or enter into any agreement to do so (except as permitted in the Share Pledge) and state shall not issue and allot or agree to issue and allot any new shares, options, warrants or other securities lawsconvertible into shares in the capital of each of them or enter into any agreement to do so or alter its share capital in any way, including without limitation, any consolidation or sub-division of its shares or issue of any shares or equity share capital which is of a class different from its shares, whether or not ranking pari passu in any respect with its other shares.
9.4 Notwithstanding anything to the contrary hereunder, the Borrower and the Security Party are hereby authorized to obtain to obtaining financing from conducting one or more of the activities set forth in Clause 9.3(a), (b), (c) or (h) with respect to the Talem Clinics (“Permitted Financing Activities”), provided that the full proceeds from such Permitted Financing Activities (less any transaction fees) shall be first used for Prepayment of the Secured Indebtedness pursuant to Clause 6.
9.5 Prior to entering into any transaction agreements regarding the Permitted Financing Activities, Borrower shall timely notify Lender regarding the terms and conditions of such Permitted Financing Activities in writing. Lender may demand that all proceeds received by the Borrower from such Permitted Financing Activities to be simultaneously applied to prepay the Secured Indebtedness.
Appears in 1 contract
Sources: Loan Agreement (Aptorum Group LTD)
Undertakings. Whilst any Conversion Right remains exercisable, the Issuer will, save with the approval of an Extraordinary Resolution of Bondholders:
(a) The Investment Manager agreesnot issue or pay up any Securities, in either case by way of capitalisation of profits or reserves, other than:
(i) by the issue of fully paid Ordinary Shares to furnish Shareholders and other holders of shares in the Company with quarterly statements capital of the Portfolio, valued, for each security listed Issuer which by their terms entitle the holders thereof to receive Ordinary Shares or other shares or securities on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape a capitalisation of profits or reserves; or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;
(ii) to furnish statements to by the Company evidencing any purchases issue of Ordinary Shares paid up in full (in accordance with applicable law) and sales for issued wholly, ignoring fractional entitlements, in lieu of the Portfolio as soon as practicable after such transactions have taken place;whole or part of a cash dividend; or
(iii) to maintain strict confidence in regard by the issue of fully paid equity share capital (other than Ordinary Shares) to the Portfolioholders of equity share capital of the same class and other holders of shares in the capital of the Issuer which by their terms entitle the holders thereof to receive equity share capital (other than Ordinary Shares); or
(iv) by the issue of Ordinary Shares or any equity share capital to, or for the benefit of, any employee or former employee, director or executive holding or formerly holding executive office of the Issuer or any of its Subsidiaries or any associated company or to provide trustees or nominees to be held for the benefit of any such person, in any such case pursuant to an employee, director or executive share or option scheme whether for all employees, directors, or executives or any one or more of them, unless, in any such case, the same constitutes a Distribution or otherwise gives rise (or would, but for the provisions of Condition 6(c) relating to roundings or the carry forward of adjustments, give rise) to an adjustment to the Company upon request a written report with respect Conversion Price or otherwise falls to be taken into account in determining whether an adjustment to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as Conversion Price shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.made;
(b) The Company agreesnot in any way modify the rights attaching to the Ordinary Shares with respect to voting, dividends or liquidation nor issue any other class of equity share capital carrying any rights which are more favourable than the rights attaching to the Ordinary Shares but so that nothing in this Condition 11(b)(ii) shall prevent:
(i) to advise the Investment Manager any consolidation, reclassification, redesignation or subdivision of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;Ordinary Shares; or
(ii) any issue of Ordinary Shares or any equity share capital to, or for the benefit of, any employee or former employee, director or executive holding or formerly holding executive office of the Issuer or any of its Subsidiaries or any associated company or to advise trustees or nominees to be held for the Investment Manager benefit of any specific investment restrictions applicable such person, in any such case pursuant to the Portfolio and to give the Investment Manager promptly written notice an employee, director or executive share or option scheme whether for all employees, directors, or executives or any of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;them; or
(iii) to maintain any modification of such rights which is not, in strict confidence and for use only with respect the opinion of an Independent Adviser (acting as an expert), materially prejudicial to the Portfolio all investment advice given by interests of the Investment Manager or KBIMA;holders of the Bonds; or
(iv) any issue of equity share capital where the issue of such equity share capital results, or would, but for the provisions of Condition 6(c) relating to roundings or the fact that the consideration per Ordinary Share receivable therefore is at least 95 per cent. of Pcum (as defined in that Condition 6(b)(ii)) or at least 95 per cent. of the arithmetic average of the Closing Prices of one Ordinary Share on five consecutive Trading Days determined in accordance with Condition 6(b)(iii), otherwise result, in an adjustment to the Conversion Price; or
(v) any issue of equity share capital or modification of rights attaching to the Ordinary Shares, where prior thereto the Issuer shall have instructed an Independent Adviser to determine what (if any) adjustments should be made to the Conversion Price as being fair and reasonable to take all actions necessary account thereof and such Independent Adviser shall have determined either that no adjustment is required or that an adjustment resulting in an increase in the Conversion Price is required and, if so, the new Conversion Price as a result thereof and the basis upon which such adjustment is to be made and, in any such case, the date on which the adjustment shall take effect delivery (and so that the adjustment shall be made and shall take effect accordingly);
(c) procure that no Securities (whether issued by the Issuer or any Subsidiary of Proxy solicitations the Issuer or procured by the Issuer or any Subsidiary of the Issuer to be issued or issued by any other person pursuant to any arrangement with the Issuer or any Subsidiary of the Issuer) issued without rights to convert into, or subscribe for, Ordinary Shares shall subsequently be granted such rights unless the same gives rise, or would, but for the fact that the consideration per Ordinary Share receivable therefore is at least 95 per cent. of Pcum (as defined in that Condition 6(b)(ii)) or at least 95 per cent. of the arithmetic average of the Closing Prices of one Ordinary Share on five consecutive Trading Days determined in accordance with Condition 6(b)(iii), otherwise give rise, to an adjustment to the Investment Manager Conversion Price and that at no time shall there be in a timely mannerissue Ordinary Shares of differing nominal values, includingsave where such Ordinary Shares have the same economic rights and unless the same are issued, but not limited offered or granted to, effecting delivery or for the benefit of, directors or employees, or former directors or employees or consultants or former consultants of the Issuer or any of its Subsidiaries or any associated company or to trustees to be held for the benefit of any Proxy solicitation received such person in any such case pursuant to any employee share or option scheme;
(d) not make any issue, grant or distribution or any other action taken if the effect thereof would be that, on the exercise of Conversion Rights, Ordinary Shares could not, under any applicable law then in effect, be legally issued as fully paid;
(e) not reduce its issued share capital, share premium (prima de emisión de acciones) account or capital redemption reserve (reserva por capital amortizado) or any uncalled liability in respect thereof, or any non-distributable reserves, except:
(i) pursuant to the terms of issue of the relevant share capital; or
(ii) as permitted under applicable law and whether by way of transfer to reserves or otherwise, as long as no Distribution is made to Shareholders; or
(iii) where the reduction is permitted by applicable law and either it results in an adjustment to the Conversion Price or an Independent Adviser (acting as expert) advises that the interests of the Bondholders will not be materially prejudiced by such reduction, provided that, without prejudice to the other provisions of these Conditions, the Issuer may exercise such rights as it may from time to time enjoy pursuant to applicable law to purchase and/or cancel its Ordinary Shares and any depositary or other receipts or certificates representing Ordinary Shares without the consent of Bondholders;
(f) if any offer is made to all (or as nearly as may be practicable all) Shareholders (or all (or as nearly as may be practicable all) Shareholders other than the offeror and/or any associate (or affiliate) of the offeror) to acquire the whole or any part of the issued Ordinary Shares, or if any person proposes a third party who scheme with regard to such acquisition, give notice of such offer or scheme to the Bondholders at the same time as any notice thereof is sent to the Shareholders (or as soon as practicable thereafter) that details concerning such offer or scheme may hold securities be obtained from the specified offices of the Paying, Transfer and Conversion Agents and, where such an offer or scheme has been recommended by the board of directors of the Issuer, or where such an offer has become or been declared unconditional in all respects, use all reasonable endeavours to procure that a like offer is extended to the holders of any Ordinary Shares issued during the period of the offer arising out of the exercise of the Conversion Rights by the Bondholders;
(g) use its reasonable endeavours to ensure that (i) its issued and outstanding Ordinary Shares shall be admitted to listing and to trading on the Relevant Stock Exchange, and (ii) the Ordinary Shares issued
(h) use all reasonable endeavours to cause to be made an application for the Bonds to be admitted to trading on the Open Market segment of the Frankfurt Stock Exchange (Freiverkehr) or otherwise make or cause to be made an application for the Bonds to be listed or admitted to trading on any other regulated market, multilateral trading facility or as defined for the purposes of Directive 2014/65/EU, as amended in the European Economic Area or other organised secondary market (the “Admission”) prior to the first Interest Payment Date and use its reasonable endeavours to maintain such Admission for so long as any of the Bonds remain outstanding. issue and allot or, as the case may be, transfer and deliver Ordinary Shares on exercise of Conversion Rights and at all times keep available for issue free from pre-emptive rights out of its authorised but unissued capital sufficient authorised but unissued Ordinary Shares to enable the exercise of Conversion Rights, and all other rights of subscription and conversion for Ordinary Shares, to be satisfied in full;
(i) appoint an Independent Adviser to carry out any action requested of it under the Bonds;
(j) not take any action (nor refrain from taking any action) that would cause the Issuer to be subject generally to the taxing jurisdiction of a territory or a taxing authority of or in that territory with power to tax other than or in addition to the Kingdom of Spain if, at such time and under current laws and regulations, the Issuer would be required generally to make any withholding or deduction for or on account of any taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of such territory or any political subdivision thereof or therein having power to tax in respect of payments of interest on the Bonds and where any such withholding or deduction exceeds any such withholding or deduction imposed or levied by or on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number Kingdom of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the ProxiesSpain.; and
(vk) not by no later than the Issue Date, (i) publish a copy of these Conditions (including a legend regarding the intended professionals target market for the Bonds) on its website and (ii) thereafter maintain the availability of such Conditions, as amended from time to hold the Investment Managertime, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission on such website until such time as none of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct Bonds remain outstanding (all as defined in the 1940 ActFiscal Agency Agreement). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Undertakings. The Pledgor undertakes
(a) The Investment Manager agreesto notify the Security Trustee promptly of any change in the shareholding in, or the capital contributions to, the Company or of any change in the shareholders’ agreement (Gesellschaftsvertrag) or the registration of the Company in the Commercial Register other than with respect to holders of a statutory power of attorney (Prokura);
(b) to notify the Security Trustee promptly of any event or circumstance other than interpretation of law which affects or is reasonably likely to affect the validity or enforceability of the security interest granted hereunder;
(c) to effect promptly any payments to be made to the Company in respect of the Shares;
(d) at its own expense, to execute and do all such assurances, acts and things as the Security Trustee may reasonably require:
(i) to furnish the Company with quarterly statements of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which perfecting or protecting the security is traded, and for any other security or asset in a manner determined in good faith intended to be afforded by the Investment Manager to reflect its fair market value;this Agreement; and
(ii) if the Secondary Pledges have become enforceable pursuant to furnish statements Clause 7.1, for facilitating the realisation of all or any part of the Shares which are subject to this Agreement and the exercise of all powers, authorities and discretions vested in the Security Trustee, and in particular to execute all transfers, conveyances, assignments and releases of that property whether to the Company evidencing any purchases Security Trustee or to its nominees and sales for give all notices, orders and directions which the Portfolio as soon as practicable after such transactions have taken placeSecurity Trustee may reasonably think expedient;
(iiie) at the Security Trustee’s reasonable request, to furnish to the Security Trustee such information concerning the Shares as is available to the Pledgor, to permit the Security Trustee and its designees to inspect, audit and make copies of and extracts from all records and all other papers in the possession of the Pledgor which pertain to the Shares on reasonable notice and during normal business hours, and, upon the reasonable request of the Security Trustee, to deliver to the Security Trustee copies of all such records and papers;
(f) to maintain strict confidence in regard to refrain from any acts or omissions which might have an adverse effect on the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager validity or KBIMA on behalf enforceability of the Fund. The Investment Manager shall provide such additional reports Secondary Pledges or the effect of which results in the Shares ceasing to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedexist; and
(vg) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to that all Future Shares will be stated therein or necessary fully paid and that there will be no obligation for a shareholder to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereofadditional contributions.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Sources: Secondary Share Pledge Agreement (Kabel Deutschland GmbH)
Undertakings. The Pledgor agrees to be bound by the covenants set out in this Section 6 (Undertakings) until the Discharge of First Lien Obligations.
(a) (e) Except as otherwise permitted under the First Lien Documents, no Pledgor will:
(i) change its or any the Company’s name as it appears in official filings in the jurisdiction of its incorporation or organization;
(ii) do business under any name other than a name authorized under sub-paragraph (i) above;
(iii) change its or the Company’s chief executive office, principal place of business or locations at which Collateral is held, or the location of its records concerning the Collateral, in each case, from that set forth in the relevant schedules to this Agreement;
(iv) change the type of entity that it or the Company is
(v) change its or the Company’s organization identification number, if any, issued by its jurisdiction of incorporation or organization;
(vi) change its or the Company’s jurisdiction of incorporation or organization or incorporate or organize in any additional jurisdictions or allow the Company to incorporate or organize in any additional jurisdictions;
(vii) otherwise amend its or the Company’s charter documents or the rights attaching to its or the Company’s Equity Interests or grant any waiver thereunder in any way that is materially adverse to the interests of the First Lien Secured Parties;
(viii) directly or indirectly liquidate, wind up, terminate, reorganize or dissolve itself or the Company (or suffer any liquidation, winding up, termination, reorganization or dissolution) or otherwise wind up itself or the Company; or
(ix) cancel, terminate or permit the cancellation or termination of any of its or the Company’s charter documents, unless, in the case of each of sub-paragraphs (i) through (vi) any such new location is in Hawaii and the Pledgor or the Company will have given the Inventory Collateral Agent at least thirty (30) days’ prior written notice of such change and all action necessary or reasonably requested by the Inventory Collateral Agent to preserve and perfect any Lien with respect to the Collateral will have been completed or taken.
(b) The Investment Manager agreesPledgor permits the Inventory Collateral Agent and its agents and representatives, during normal business hours and upon reasonable notice, to inspect Collateral, to examine and make copies of and abstracts from the records of the Collateral, and to discuss matters relating to the Collateral directly with the Pledgor’s officers and employees.
(c) The Pledgor will cause the Company to keep and maintain, at its address indicated in Schedule 1 (Pledged Securities) its company records and all records, documents and instruments constituting, relating to, or evidencing such Pledged Securities. The Pledgor agrees to cause the Company to permit the Inventory Collateral Agent and its agents and representatives during normal business hours and upon reasonable notice, to examine and make copies of and abstracts from the records and stock ledgers and to discuss matters relating to the Pledged Securities of the Company and its records directly with its officers and employees.
(d) At the Inventory Collateral Agent’s request, the Pledgor must provide it with any information concerning the Collateral that it may reasonably request.
(e) Except as otherwise permitted by the First Lien Documents, the Pledgor:
(i) must maintain sole legal and beneficial ownership of the Collateral;
(ii) must not permit any Collateral to be subject to any Lien other than the Inventory Collateral Agent’s Lien or the Second Lien Agent’s Lien and must at all times warrant and defend the Inventory Collateral Agent’s Lien in the Collateral against all other Liens and claimants (other than the Liens created under the Membership Interests Second Lien Pledge Agreement);
(iii) must not sell, assign, transfer, pledge, license, lease or encumber, or grant any option, warrant, or right with respect to, any of the Collateral, or agree or contract to do any of the foregoing;
(iv) must not waive, amend or terminate, in whole or in part, any accessory or ancillary right or other right in respect of any Collateral; and
(v) must not take any action which would result in a reduction in the value of any Collateral.
(f) Except as otherwise permitted by the First Lien Documents, the Pledgor must pay when due (and in any case before any penalties are assessed or any Lien is imposed on any Collateral) all taxes, assessments and charges imposed on or in respect of the Collateral and all claims against the Collateral, except to the extent such tax, assessment or charge (i) is being contested in good faith with due diligence and by appropriate proceedings, (ii) is adequately disclosed and fully provided for in the financial statements of the Pledgor in accordance with generally accepted accounting principles in the United States of America, (iii) enforcement is stayed (or bonded in full) for so long as the Pledgor is pursuing such contest and (iv) such contest does not involve any material risk of the forfeiture or loss of any material portion of the Collateral and an adequate reserve is set aside for payment of such tax, assessment or charge and the costs required to contest them.
(g) Except as otherwise permitted by the First Lien Documents, in any suit, legal action, arbitration or other proceeding involving the Collateral or the Inventory Collateral Agent’s Lien, the Pledgor must take all lawful action to avoid impairment of the Inventory Collateral Agent’s Lien or the Inventory Collateral Agent’s rights under this Agreement or the imposition of a Lien on any of the Collateral.
(h) Except for dividends or distributions permissible under Section 6.19 (Distributions and redemptions of membership interests) of the Framework Agreement and made in compliance with such section, the Pledgor will not permit the Company:
(i) to furnish the Company with quarterly statements make, declare, or pay any dividends, distributions, or returns of the Portfoliocapital, valuedor purchase, redeem, or otherwise acquire for each security listed on value any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape orshares of capital stock or other ownership interests in such issuer now or later outstanding, in the case or make any distribution of securities not so reported, by the principal exchange on which the security is traded, and for any other security assets or asset in a manner determined in good faith by the Investment Manager property to reflect its fair market valuemembers or shareholder as such;
(ii) to furnish statements to cancel or change the Company evidencing terms of any purchases and sales for the Portfolio as soon as practicable after such transactions have taken place;Equity Interests; or
(iii) to maintain strict confidence in regard to effect or permit the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting change of Proxies by the Investment Manager or KBIMA on behalf control of the Fund. The Investment Manager shall provide such additional reports to Company, except as expressly permitted under the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereofFramework Agreement.
(b) The Company agrees:
(i) The Pledgor will not take any action, or permit the Company to advise the Investment Manager take any action, that could cause any of the investment objectives, policies and restrictions Pledged Securities to constitute “margin stock” within the meaning of Regulation U or X issued by the Board of Governors of the Fund United States Federal Reserve System.
(j) Annually on each anniversary of the date of this Agreement and from time to time on written demand from the Inventory Collateral Agent, the Pledgor will deliver to the Inventory Collateral Agent (i) a Security Supplement executed by an Authorized Officer of any changes the Pledgor, together with supplements to all of the Schedules attached to this Agreement or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise a written confirmation executed by an Authorized Officer of the Investment Manager Pledgor confirming that there has been no change in the information provided in this Agreement since the date of any specific investment restrictions applicable to the Portfolio execution and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to this Agreement or the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf date of the Fund, and most recent Security Supplement or written confirmation delivered pursuant to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
this Section 6.1(j) (v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 ActUndertakings). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Sources: Membership Interests First Lien Pledge Agreement (Par Petroleum Corp/Co)
Undertakings. The Seller undertakes to the Bank that the Seller will:
(a) The Investment Manager agreesduly perform its obligations under each Contract of Sale which relate to, or may in any way affect, any Purchased Debt;
(b) not:
(i) amend or permit any amendment or change to furnish the Company with quarterly statements terms of a Contract of Sale (or the relevant Invoice or any document evidencing any Related Rights) which may affect any of the Portfolio, valued, for each security listed on Bank's rights in connection with any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape Purchased Debt; or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;
(ii) reduce or permit the reduction of the principal amount of any Purchased Debt, or enter into any discussions or communications to furnish statements to do or which contemplate any of the Company evidencing any purchases and sales for foregoing, unless approved by the Portfolio as soon as practicable after such transactions have taken placeBank in writing;
(iiic) to maintain strict confidence in regard upon becoming aware, immediately disclose to the Portfolio; Bank any Adverse Information;
(ivd) notify the Bank forthwith of any litigation or arbitration which is taking place, pending or threatened against the Seller in connection with a Contract of Sale to which any Purchased Debt relates;
(e) use the Seller's best endeavours to procure the Agreed Buyer's due and punctual payment to the Bank (or the Assignee) of all Purchased Debts and to protect the interests of the Bank as if the Seller had not sold the Purchased Debt;
(f) not permit any Security to be created or subsist over, nor sell, assign, transfer, discount or otherwise dispose of, any of the Seller's rights, title or interest in the Returned Goods, the Debt and/or to any Contract of Sale except pursuant to the Agreement or in the Bank's favour;
(g) conduct appropriate due diligence on the Ariba Network to ensure that it meets the Seller’s requirements and will notify the Bank immediately if it discontinues receiving services from the Provider and about other relevant changes. The Seller is aware and accepts the risks associated with using the Ariba Network, including the risk of delay, loss, interception, corruption, misuse or disclosure to an incorrect third party of Transmissions;
(h) accept full responsibility for any information, document or data the Seller transmits on any Channel;
(i) as of the applicable Purchase Date for each Purchased Debt, reflect in the Seller's internal records that that Purchased Debt has been transferred, assigned, conveyed and sold to the Bank in accordance with the Agreement;
(j) comply with all requirements set out in Clause 13;
(k) comply with (i) all applicable laws relating to the Seller's dealings with the Agreed Buyer and the Purchased Debts and (ii) the Regulatory Compliance Statement;
(l) retain all documents, instruments and other records relating to the Purchased Debts;
(m) give the Bank accurate and up to date information in relation to the Agreement and any other information the Bank reasonably requests (including without limitation any personal information that the Bank is required to provide under any agreement between the Bank and any Authority) and immediately notify the Bank of any changes;
(n) keep all limits confidential;
(o) give the Bank any information or document in relation to the Company upon request Agreement or a written report with respect to Debt the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agreesBank requests within a reasonable time including:
(i) to advise the Investment Manager original or a certified copy of the investment objectives, policies Contract of Sale and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;all relevant Invoices; and
(ii) to advise the Investment Manager purchase orders, delivery orders and any other evidence of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictionsshipment;
(iiip) to maintain provide the Bank with copy of any other authorisation or other document, opinion or assurance which the Bank has Notified the Seller is necessary or desirable in strict confidence connection with the entry into and performance of, and the transactions contemplated by the Agreement or for use only with respect the validity and enforceability of the Agreement, in form and substance satisfactory to the Portfolio all investment advice given by the Investment Manager or KBIMABank;
(ivq) take independent legal, accounting and other advice in relation to take all actions necessary any Service, Transaction or the Agreement with the Bank (including, without limitation, in connection with any accounting treatment to effect delivery of Proxy solicitations be applied to the Investment Manager Transactions) and agrees that the Bank does not owe any advisory, fiduciary or similar duties in a timely mannerthis regard;
(r) deliver to the Bank:
(i) within 60 days from the end of each calendar year, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities status reports on behalf each of the Fund, and Seller's outstanding projects relevant to verify, the Debts the Bank has purchased or to cause such third party to verify, at such time, that may purchase under the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the ProxiesAgreement; and
(ii) as soon as available, the Seller's audited consolidated financial statements;
(s) take such actions, at the Seller's own expense, to prevent and minimise any Losses (including any Losses on the part of an Assignee) caused by any actual or prospective Buyer payment default and protect the rights, powers and interests of the Bank and an Assignee under the Agreement including, if requested by the Bank, co-operating with the Bank to stop Goods in transit;
(t) procure that each Guarantor acknowledges and signs the Agreement (including any amendment made to the Agreement from time to time);
(u) accept full responsibility for any document, information or data the Seller imports on the Bank’s website;
(v) acknowledge that the Bank is not responsible for and has no duty to hold the Investment Managervet, and filter or otherwise edit any of its directorsdocument, officers and employees, liable, under any circumstances for any error of judgment information or other action taken or omitted data imported by the Investment Manager Seller on the Bank’s website;
(w) comply with the provisions of Schedule 4 if the Bank sells, assigns or the Subadviser in the good faith exercise of their powers hereunder or arising out transfers a Debt to an Assignee; and
(x) ensure, where a Purchased Debt of an act Agreed Buyer is (or omission becomes) the subject of Insurance, that the Custodiandebts (whether Purchased Debt or otherwise, or deriving from the Contract of Sale or otherwise) of that Agreed Buyer are not the subject of any broker-dealer other insurance policy where the Seller is an insured party to that other insurance policy (whether or agent selected not that other policy was procured by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 ActSeller). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Sources: Receivables Purchase Terms
Undertakings. Each Controlling Shareholder severally undertakes to each of the Company and the Nomad that it shall and shall procure (so far as it is properly able to do so) that each of its respective associates shall:
(a) The Investment Manager agrees:ensure that no contract or arrangement between the Company or any member of the Group and the Controlling Shareholder or its associates shall be entered into or varied after Admission unless it has been approved by a majority of the Independent Directors and (if the Controlling Shareholder is a Director at such time) it shall abstain from voting on any resolution of the Board relating to any such contract or arrangement;
(b) procure that any transactions or arrangements between the Company or any member of the Group and any of the Controlling Shareholders and/or any of their associates shall be conducted at arm's length and on normal commercial terms;
(c) where the Company or any member of the Group has entered into a contract or other arrangement with any Controlling Shareholder or its associates, ensure that the Controlling Shareholder procures that any decisions as to the implementation, amendment or enforcement of such contract or arrangement are taken independently of it and (in so far as it is able) its associates;
(d) procure that any disputes between the Company (or any member of the Group) and any Controlling Shareholder and/or any of its associates (including any matter relating to the terms of this Agreement) shall be exclusively dealt with on behalf of the Company or the relevant member of the Group by the Independent Directors;
(e) procure that the Board shall at all times be comprised of at least two Independent Directors;
(f) procure that if an Independent Director ceases to be either an Independent Director or a director of the Company, one or more new Independent Directors will be appointed to the Board as shall be necessary to ensure compliance with sub-clause 4(e);
(g) the quorum for any meeting of the Board shall be three Directors of whom one shall be an Independent Director and one shall be a Nominated Director, unless a majority of the Independent Directors and all the Nominated Directors otherwise consent;
(h) not take any action that would have the effect of preventing the Company or any other member of the Group from complying with its obligations under the AIM Rules for Companies;
(i) not propose or procure the proposal of a shareholder resolution which is intended to furnish circumvent the Company with quarterly statements proper application of the Portfolio, valued, AIM Rules for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market valueCompanies;
(iij) to furnish statements to not take any action which precludes or inhibits the Company evidencing or any purchases and sales for the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf member of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting Group from operating independently of Proxies on behalf of the Fund as shall be reasonably requestedany Controlling Shareholder and its associates; and
(vk) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other documentnot take, or omit to take, any amendment or supplement theretoaction from time to time which adversely affects, or arising out of or based upon any omission might reasonably be expected to state therein any material fact required adversely affect, the Company's ongoing eligibility for admission to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereoftrading on AIM.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Sources: Relationship Agreement
Undertakings. (Each of the Pledgors hereby undertakes not to enter into any legal instrument relating to, or granting any pledge, lien, encumbrance, or other interest or third party right over the Shares. In addition, except in accordance with the terms of the Facilities Agreement and any other Debt Document and for as long as the Pledge remains in effect, each of the Pledgors hereby undertakes:
a) The Investment Manager agreesnot to dispose of, transfer or assign the Shares or take any other action with respect to the Shares (other than in accordance with the Facilities Agreement) that would jeopardize (i) any rights of the Pledgees under this Agreement or any other Debt Document or (ii) the validity and enforceability of the Pledge;
b) not to revoke or amend the board resolution referred to in Article 3b);
c) not to vote in favor of any resolution with regard to the Company whereby:
(i) the Existing Shares would be modified or altered; or
(ii) the transferability of the Shares would be restricted in any way;
d) to furnish promptly inform the Security Agent, in writing, (i) if a third party claims or pretends to own any of the Shares and (ii) of all circumstances concerning the Company with quarterly statements which might materially adversely affect the validity or enforceability of the PortfolioPledge;
e) to enter into and to procure the perfection of additional pledge agreements (at its own cost and expense), valuedif and to the extent that a pledge of certain Related Rights requires, as a matter of law, the execution and perfection of a specific pledge agreement for each security listed such Related Rights;
f) to do all acts and things necessary (at its own cost and expense) in case of a realization of the Pledge, and procure that any acts and things be done (at its own cost and expense) to properly effect any transfer of the Shares to a new owner, free of any pledge, lien, encumbrance, or other interest or third party right of any nature on any national securities exchange at of the last quoted sale price on the valuation date reported on the composite tape orShares so transferred and, in the case of securities not so reportedregistered shares, by to procure that the principal exchange on which board of directors of the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;
(ii) to furnish statements to respective Company register such new owner as new shareholder of the Company evidencing any purchases and sales for the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedrights; and
(vg) to indemnify promptly execute such further documents and do such further acts (at its own cost and expense) which the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make Pledgees may reasonably require for the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager purpose of the investment objectivescreation, policies perfection, protection and restrictions realization of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsPledge.
Appears in 1 contract
Undertakings. The Employee, unconditionally and irrevocably agrees and undertakes with the Company:-
(a) The Investment Manager agrees:not to take any action or cause to be done anything in any manner whatsoever, to cause the Company’s Intellectual Property Rights to be affected, compromised, diminished or lost;
(b) not to cause or permit anything which may damage or endanger the Company’s Intellectual Property Rights or the Company’s title to it or assist or allow others to do so;
(c) to notify the Company of any suspected infringement of the Company’s Intellectual Property Rights and to take such reasonable action as the Company shall direct at the Company’s expense in relation to such infringement;
(d) ensure that any Works created, produced or worked on by the Employee does not infringe any third party’s Intellectual Property Rights;
(e) not to challenge the validity of any of the Company’s Intellectual Property Rights;
(f) not to use the Company’s Intellectual Property Rights except directly in the conduct of the Business;
(g) not to use the Company’s Intellectual Property Rights in the name or corporate name of such Employee;
(h) to compensate the Company for any use of the Company’s Intellectual Property Rights by such Employee otherwise than directly in the conduct of the Business;
(i) to furnish indemnify the Company with quarterly statements for any liability incurred to third parties for any use of the Portfolio, valued, for each security listed on any national securities exchange at Company’s Intellectual Property Rights by the last quoted sale price on the valuation date reported on the composite tape or, Employee otherwise than directly in the case conduct of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market valueBusiness;
(iij) not to furnish statements apply for registration of the Company’s Intellectual Property Rights in such Employee’s name but to assist the Company evidencing at the Company’s expense any purchases and sales for assistance it may require in connection with the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf registration of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf Company’s Intellectual Property Rights in any part of the Fund as shall be reasonably requestedworld and not to interfere with in any manner nor attempt to prohibit the use or registration of the Company’s Intellectual Property Rights or any similar name or designation by any other licensee of the Company; and
(vk) to indemnify the Fund against hold any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that additional goodwill generated by such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made Employee for the Portfolio that Company’s Intellectual Property Rights or the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or Business as bare trustee for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsCompany.
Appears in 1 contract
Sources: Employment Agreement (Horizon Quantum Computing Pte. Ltd.)
Undertakings. (a) The Investment Manager agreesundertakings in this Clause 18 remain in force from the date of this Agreement for as long as any Commitment is in force or any amount is outstanding under this Agreement until the Termination Date. The Borrower shall, save with the approval of the Majority Lenders,
18.1 not in any way modify the rights attaching to the Ordinary Shares with respect to voting, dividends or liquidation nor issue any other class of equity share capital carrying any rights which are more favourable than such rights attaching to the Ordinary Shares but so that nothing in this Clause 18.1 shall prevent:
18.1.1 the issue of equity share capital to employees or former employees or directors (including directors holding or formerly holding executive office or the personal service company of any such person) (or the spouse or relative of any such person) whether of the Borrower or any of the Borrower’s Subsidiaries or associated companies by virtue of their office or employment pursuant to any scheme or plan approved by the Borrower in general meeting or which is established pursuant to such a scheme or plan which is or has been so approved;
18.1.2 any consolidation, reclassification or subdivision of the Ordinary Shares;
18.1.3 any modification of such rights which is not, in the determination in its absolute discretion of an independent financial adviser, materially prejudicial to the interests of the Lenders;
18.1.4 any alteration to the articles of association of the Borrower made in connection with the matters described in this Clause 18 or which is supplemental or incidental to any of the foregoing (including any amendment made to enable or facilitate procedures relating to such matters and any amendment dealing with the rights and obligations of holders of Securities, including Ordinary Shares, dealt with under such procedures);
18.1.5 any issue of equity share capital where the issue of such equity share capital results, or would, but for the provisions of Clause 13.4 (Procedure for exercise of Conversion Rights) relating to roundings, otherwise result in an adjustment to the Conversion Price;
18.1.6 any issue of equity share capital or modification of rights attaching to the Ordinary Shares, where prior thereto the Borrower shall have instructed an independent financial adviser to determine in its absolute discretion what (if any) adjustments should be made to the Conversion Price as being fair and reasonable to take account thereof and such independent financial adviser shall have determined in its absolute discretion either that no adjustment is required or that an adjustment to the Conversion Price is required and, if so, the new Conversion Price as a result thereof and the basis upon which such adjustment is to be made and, in any such case, the date on which the adjustment shall take effect (and so that the adjustment shall be made and shall take effect accordingly);
18.2 not make any issue, grant or distribution or take or omit to take any other action if the effect thereof would be that, on the exercise of Conversion Rights, Ordinary Shares could not, under any applicable law then in effect, be legally issued as fully paid;
18.3 not reduce its issued share capital or any uncalled liability in respect thereof, or any non-distributable reserves, except:
18.3.1 pursuant to the terms of issue of the relevant share capital;
18.3.2 by means of a purchase or redemption of share capital of the Borrower to the extent, in any such case, permitted by applicable law;
18.3.3 where the reduction does not involve any distribution of assets;
18.3.4 solely in relation to a change in the currency in which the nominal value of the Ordinary Shares is expressed;
18.3.5 to create distributable reserves;
18.3.6 by way of transfer to reserves as permitted under applicable law;
18.3.7 where the reduction is permitted by applicable law and an independent financial adviser, acting as expert and in its absolute discretion, advises that the interests of the Lenders will not be materially prejudiced by such reduction;
18.3.8 where the reduction is permitted by applicable law and results in an adjustment to the Conversion Price or is otherwise taken into account for the purposes of determining whether such an adjustment should be made, or
18.3.9 provided that, without prejudice to the other provisions of this Agreement, the Borrower may exercise such rights as it may from time to time be entitled pursuant to applicable law to purchase, redeem or buy back its Ordinary Shares and any depositary or other receipts or certificates representing Ordinary Shares without the consent of any Lender;
18.4 provide to the Lenders, by no later than the Tranche A Closing Date, all of the documents and evidence referred to in Schedule 2 (Conditions precedent) in form and substance satisfactory to the Lenders (acting reasonably) provided that the conditions may be waived by the Lenders in whole or in part; and
18.5 pay and discharge all Taxes due and payable by it prior to the accrual of any fine or penalty for late payment, unless (and only to the extent that) (i) to furnish the Company with quarterly statements payment of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security those Taxes is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;
(ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act being contested in good faith, (ii) adequate reserves are being maintained for those Taxes and therefore nothing herein shall the costs required to contest them (iii) the payment can be lawfully withheld and (iv) failure to pay those Taxes is not reasonably likely to have a material adverse effect.
18.6 take all reasonable efforts to ensure that it will obtain the Tax Ruling as submitted in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsaccordance with Clause 17.6.3.
Appears in 1 contract
Undertakings. So long as the Bond is outstanding and to the extent permitted by applicable law, unless with the prior written approval of the Bondholders:-
(a) The Investment Manager agrees:the Company shall keep available for issue, free from pre-emptive rights, out of its authorised but unissued capital sufficient Shares to satisfy in full the Conversion Rights at the Conversion Price from time to time and all other rights for the time being outstanding of subscription for and conversion into Shares;
(b) the Company shall not in any way modify the rights attached to the Shares as a class or attach any special restrictions thereto;
(c) the Company shall not issue or pay up any securities by way of capitalisation of profits or reserves other than (i) by the issue of fully paid Shares to holders of its Shares; or (ii) as mentioned in Condition 6(c)(iii); or (iii) by the issue of Shares in lieu of a cash dividend in the manner referred to in Condition 6(c)(iv) ;
(d) the Company shall not create or permit to be in issue any Equity Share Capital (as defined below) other than Shares, provided that nothing in this Condition 10(d) shall prevent (i) any consolidation or sub-division of the Shares; or (ii) the issue of Equity Share Capital which does not participate in dividend before a certain date or in respect of a certain financial period but is pari passu in all other respects with the Shares; or (iii) the issue of Equity Share Capital to officers or employees of the Company or any of its subsidiaries pursuant to an employee or executive share scheme;
(e) the Company shall procure that (i) no securities issued by the Company shall be converted into Shares or exchanged for Shares except in accordance with the terms of issue thereof, (ii) no securities issued by the Company without rights to convert into Shares or to be exchanged for Shares shall subsequently be granted such rights and (iii) at no time shall there be in issue Shares of differing nominal values;
(f) the Company shall not make any issue, grant or distribution or take any other action if the effect thereof would be that on the exercise of the Conversion Rights it would but for Condition 6(i) be required to issue Shares at a discount to their nominal value;
(g) if an offer is made to the holders of Shares (or such holders other than the offeror and/or any company controlled by the offeror and/or persons acting in concert with the offeror) to acquire all or a proportion of the Shares, the Company shall forthwith give notice of such offer to the Bondholder(s) and use all its best endeavours to procure that a similar offer is extended in respect of the Bond(s) or in respect of any Shares issued on conversion of the Bond(s) during the period of the offer;
(h) the Company shall not make any distribution in specie to holders of Shares unless the Bondholder is entitled to the Specie Distribution Right in accordance with Condition 7;
(i) to furnish the Company with quarterly statements shall not, subject as hereinafter provided, make any reduction or redemption of share capital, share premium account or capital redemption reserve involving the repayment of money to shareholders (other than to shareholders having the right on a winding-up to a return of capital in priority to the holders of Shares) or reduce any uncalled liability in respect thereof unless, in any such case, the same gives rise (or would, but for the provisions of Conditions 6(e) or 6(g) give rise) to an adjustment of the Portfolio, valued, Conversion Price in accordance with Condition 6;
(j) the Company shall use its best endeavours (a) to maintain a listing for each security listed all the issued Shares on the Stock Exchange or on such other equivalent internationally recognised stock exchange (a “recognised stock exchange”) as the Company may from time to time determine (b) to obtain and maintain a listing on the Stock Exchange (or a recognised stock exchange) for all the Shares issued on the exercise of the Conversion Rights attaching to the Bond and (c) to obtain a listing for all the Shares issued on the exercise of the Conversion Rights attaching to the Bond on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal other stock exchange on which any of the security Shares are for the time being listed and will forthwith give notice to the holder of the Bond in accordance with Condition 17 of the listing or delisting of the Shares by any such stock exchange;
(k) as soon as possible and in any event not later than 3 days after the announcement of the terms of any issue referred to in Condition 6 give notice to the Bondholder advising it of the date on which the relevant adjustment of the Conversion Price is tradedlikely to become effective and of the effect of exercising their Conversion Rights pending such date;
(l) the Company shall comply with and procure the compliance of all conditions imposed by the Stock Exchange or by any other competent authority (in Hong Kong or elsewhere) for approval of the issue of the Bond or for the listing of and permission to deal in the Shares issued or to be issued on the exercise of the Conversion Rights and to ensure the continued compliance thereof;
(m) the Company shall not make any disposal of its assets which would constitute a major transaction for the purpose of Chapter 14 of the Rules Governing the Listing of Securities on the Stock Exchange (and any amendment thereto);
(n) the Company shall not issue Shares for the acquisition of any asset at a total Effective Consideration per Share which is less than 95 per cent. of the market price at the date of the announcement of the terms of such issue, and for any other security or asset in a manner determined in good faith the purpose of this Condition 10(n) “total Effective Consideration” shall be the aggregate consideration credited as being paid for such Shares by the Investment Manager to reflect its fair market valueCompany on acquisition of the relevant asset without any deduction of any commissions, discounts or expenses paid, allowed or incurred in connection with the issue thereof, and the “total Effective Consideration per Share” shall be the total Effective Consideration divided by the number of Shares issued as aforesaid;
(iio) to furnish statements to The Company shall ensure that all Shares issued upon conversion of the Company evidencing any purchases Bond will be duly and sales for the Portfolio as soon as practicable after such transactions have taken placevalidly issued fully paid and registered;
(iiip) to maintain strict confidence in regard to The Company shall, within a reasonable time upon a request by the Portfolio; (iv) to Bondholder, provide to the Company upon request a written report with respect Bondholder such published financial and other published information relating to the voting of Proxies by Company, its businesses and operations as the Investment Manager Bondholder may reasonably specify or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports require from to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedtime to time; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(bq) The Company agrees:
(i) to advise the Investment Manager shall not enter into any deed, agreement, assignment, instrument or documents whatsoever which may result in any breach of the investment objectives, policies and restrictions terms of the Fund and Bond. For the purpose of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.this Condition 10,
Appears in 1 contract
Sources: Sale and Purchase Agreement (Nam Tai Electronics Inc)
Undertakings. The Pledgor undertakes
(a) The Investment Manager agreesto notify the Security Trustee promptly of any change in the partnership of, or the capital contributions to, the Company or of any change in the partnership agreement (Gesellschaftsvertrag) or any registrations in the commercial register other than with respect to holders of a statutory power of attorney (Prokura);
(b) to notify the Security Trustee promptly of any event or circumstance other than interpretation of law which affects or is reasonably likely to affect the validity or enforceability of the security interest granted hereunder;
(c) to effect promptly any payments to be made to the Company in respect of the Interests;
(d) at its own expense, to execute and do all such assurances, acts and things as the Security Trustee may reasonably require:
(i) to furnish the Company with quarterly statements of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which perfecting or protecting the security is traded, and for any other security or asset in a manner determined in good faith intended to be afforded by the Investment Manager to reflect its fair market value;this Agreement; and
(ii) if the Secondary Pledges have become enforceable pursuant to furnish statements Clause 7.1, for facilitating the realisation of all or any part of the Interests which are subject to this Agreement and the exercise of all powers, authorities and discretions vested in the Security Trustee, and in particular to execute all transfers, conveyances, assignments and releases of that property whether to the Company evidencing any purchases Security Trustee or to its nominees and sales for give all notices, orders and directions which the Portfolio as soon as practicable after such transactions have taken placeSecurity Trustee may reasonably think expedient;
(iiie) at the Security Trustee’s reasonable request, to furnish to the Security Trustee such information concerning the Interests as is available to the Pledgor to permit the Security Trustee and its designees to inspect, audit and make copies of and extracts from all records and all other papers in the possession of the Pledgor which pertain to the Interests on reasonable notice and during normal business hours, and, upon the reasonable request of the Security Trustee, to deliver to the Security Trustee copies of all such records and papers;
(f) to maintain strict confidence in regard to refrain from any acts or omissions which might have an adverse effect on the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager validity or KBIMA on behalf enforceability of the Fund. The Investment Manager shall provide such additional reports Secondary Pledges or the effect of which results in the Interests ceasing to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedexist; and
(vg) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to that all Future Interests will be stated therein or necessary fully paid and that there will be no obligation for a limited partner to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereofadditional contributions.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Sources: Secondary Interest Pledge Agreement (Kabel Deutschland GmbH)
Undertakings. 7.1 The Borrower undertakes that, as and from the date of this Agreement and throughout the Security Period, it will comply in full with the following undertakings:
(a) The Investment Manager agreesthe Borrower will send (or procure that there is sent) to the Lender:
(i) to furnish as soon as available, and in any event within one hundred and twenty (120) days after the Company with quarterly end of each financial year of the Borrower, the consolidated accounts and financial statements of the PortfolioBorrower and its Subsidiaries and the individual accounts and financial statements of the Guarantor, valued, for each security listed on any national securities exchange at such accounts and financial statements to be prepared in accordance with generally accepted international accounting principles consistently applied and certified as to their correctness by a firm of chartered accountants acceptable to the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market valueLender;
(ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio as soon as practicable available, and in any event within ninety (90) days after such transactions have taken placethe end of each 3-month period in each financial year of the Borrower, quarterly financial information of the Borrower (including, without limitation, a list of vessels owned at that time by all the Subsidiaries of the Borrower) in form and substance acceptable to the Lender;
(iii) to maintain strict confidence in regard as soon as the same is instituted (or, to the Portfolio; knowledge of the Borrower, threatened), details of any litigation, arbitration or administrative proceedings against or involving the Borrower, the Guarantor, the Approved Manager, the Approved Sub-Manager or the Ship (including any actual breach of the ISM Code) which is likely to have a material adverse effect on the Borrower, the Guarantor or the operation of the Ship;
(iv) promptly upon being sent, copies of all communications to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund its shareholders and/or creditors generally (and in their capacities as shall be reasonably requestedsuch); and
(v) from time to indemnify the Fund against any lossestime, claimsand on demand, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report such additional financial or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein information (including but not misleading, limited to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished ISM Code Documentation) relating to the Borrower and/or the Guarantor and/or the Ship as may be requested by the Investment Manager to the Company specifically for use in the preparation thereof.Lender;
(b) The Company agrees:
(i) to advise the Investment Manager of Borrower will notify the investment objectives, policies and restrictions of the Fund and Lender of any changes Event of Default (or modifications thereto and to notify event which, with the Investment Manager promptly giving of any notice and/or lapse of time or other changes in applicable condition, might constitute an Event of Default) forthwith upon the Portfolio of which the Investment Manager would not otherwise have knowledgeoccurrence thereof;
(iic) the Borrower will maintain its corporate existence as a body corporate duly organised and validly existing and in good standing under the laws of Bermuda and will obtain and promptly renew from time to advise the Investment Manager of any specific investment restrictions applicable time, and will promptly furnish certified copies to the Portfolio Lender of, all such authorisations, approvals, consents and licences as may be required under any applicable law or regulation to give enable the Investment Manager promptly written notice Borrower to perform its obligations under this Agreement, the Master Agreement and the Security Documents to which the Borrower is a party (or any of any investments made them) or required for the Portfolio that validity or enforceability of this Agreement, the Company deems Master Agreement and the Security Documents to be in violation which the Borrower is a party (or any of such objectives or restrictionsthem) and the Borrower shall comply with the terms of the same;
(iiid) the Borrower will not without the prior consent of the Lender, create, assume or permit to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager exist any Security Interest upon any of its assets (whether now owned or KBIMA;
hereafter acquired) (iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery the Borrower’s rights against the Lender under the Master Agreement or all or any part of the Borrower’s interest in any amount payable to the Borrower by the Lender under the Master Agreement) except as contemplated by the Security Documents;
(e) the Borrower will not (voluntarily or involuntarily) without the prior consent of the Lender, sell, convey, transfer, lease, or otherwise dispose of all or a substantial part of its assets (whether by one transaction or a series of transactions and whether related or not);
(f) the Borrower will procure that the Guarantor shall comply with the ISM Code and notify the Lender in writing in the event that either the DOC or SMC is withdrawn, cancelled or suspended;
(g) the Borrower will procure the observance and performance by the other Security Parties of the terms of the Security Documents to which they are each respectively a party;
(h) the Borrower will ensure that the Guarantor and the Borrower will maintain at all times with the Lender freely available cash deposits of not less than $1,000,000 in aggregate;
(i) the Borrower will keep the Lender fully informed at the earliest opportunity and, in any event at regular intervals of not more than three (3) months, of any Proxy solicitation received actual or proposed purchases of any ship, vessel or other asset by a third party who may hold securities on behalf any company within the same beneficial ownership or control of the FundBorrower, and to verifythe Guarantor, the Approved Manager or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the ProxiesApproved Sub-Manager; and
(vj) the Borrower will procure that its liabilities under this Agreement, the Master Agreement and the Security Documents to which it is a party do and will rank at least pari passu with all its other present and future unsecured liabilities, except for liabilities which are mandatorily preferred by law.
7.2 The Borrower further undertakes that it shall not, as and from the date of this Agreement and throughout the Security Period, without the prior consent of the Lender (such consent not to hold be unreasonably withheld):
(a) change the Investment Managernature of its business nor make any commitments, and other than those occurring in the ordinary course of its business (including, without limitation, commitments in respect of purchases of ships); or
(b) assign or otherwise dispose of any of its directorsbook debts; or
(c) reduce its issued share capital; or
(d) consolidate or amalgamate with, officers or merge into, any other entity.
(a) The Borrower hereby further undertakes that if (after the Ship has been delivered to it under the Shipbuilding Contract), and employeesso often as, liable, under the market value (as determined in accordance with Clause 7.3(b)) of the Ship (plus the market value of any circumstances additional security for any error the time being actually provided to the Lender pursuant to this Clause 7.3) falls below One hundred and twenty five per cent. (125%) of judgment the Loan plus or other action taken or omitted minus (as the case may be) the notional amount determined by the Investment Manager Lender in its absolute discretion as the amount which would become due from or to the Subadviser Borrower on terminating any Transaction under the Master Agreement in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in same manner as if it were a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct Terminated Transaction (all as defined in Section 14 of the 1940 ActMaster Agreement) effected by the Lender after an Event of Default, it will within ten (10) days of being notified by the Lender of such requirement (which notification shall be conclusive and binding on the Borrower) either:
(i) provide the Lender with, or procure the provision to the Lender of, such additional security as shall in the opinion of the Lender be adequate to make up such deficiency, which additional security shall take such form, be constituted by such documentation and be entered into between such parties as the Lender in its absolute discretion may approve or require (and, if the Borrower does not make proposals satisfactory to the Lender in relation to such additional security within five (5) days of the date of the Lender’s notification to the Borrower aforesaid, the Borrower shall be deemed to have elected to prepay in accordance with (ii) below); or
(ii) prepay (subject to, and in accordance with, sub-clauses (c), (d) and (e) of Clause 4.2) such part of the Loan as will ensure that the market value (determined as aforesaid) of the Ship and any such additional security is after such prepayment at least One hundred and twenty five per cent. (125%) of the Loan plus or minus (as the case may be) such notional amount as determined by the Lender in its absolute discretion as the amount which would become due from or to the Borrower on terminating any Transaction under the Master Agreement in the same manner as if it were a Terminated Transaction (as defined in Section 14 of the Master Agreement) effected by the Lender after an Event of Default.
(b) For the purposes of this Clause 7.3, the market value of the Ship shall be determined (at the expense of the Borrower) at any such time as the Lender may request on the basis of a valuation prepared by an independent sale and purchase shipbroker as may from time to time be appointed by the Lender. For this purpose, each such valuation shall be made with or without physical inspection of the Ship (as the Lender may require), on the basis of a sale for prompt delivery for cash at arm’s length on normal commercial terms as between a willing seller and a willing buyer, free of any existing charter or other contract of employment. The federal Borrower agrees to accept any valuation made by the independent sale and state securities laws impose liabilities under certain circumstances on persons who act purchase shipbroker appointed as aforesaid as conclusive evidence of the market value of the Ship at the date of such valuation. The Borrower agrees to supply to the Lender and to any such independent sale and purchase shipbroker such information concerning the Ship and her condition as such the independent sale and purchase shipbroker may require for the purpose of making such valuation. Subject to no Event of Default having occurred, the Borrower shall only be obliged to pay the fees and expenses of up to one valuation of the Ship commissioned by the Lender in good faitheach calendar year.
(c) For the purpose of this Clause 7.3, the market value of any additional security provided or to be provided to the Lender shall be determined by the Lender in its absolute discretion without any necessity for the Lender assigning any reason therefor.
(d) In connection with any additional security provided in accordance with this Clause 7.3, the Lender shall be entitled to receive certified copies of such documents of the kinds referred to in sub-clauses (a), (b), (c), (d) and therefore nothing herein (e) (inclusive) of Clause 5.1 and such favourable legal opinions as the Lender shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsits absolute discretion require.
Appears in 1 contract
Undertakings. 3.1 During the term of this Deed, the Investor hereby undertakes to the Company and (for as long as it remains nominated adviser to the Company) SP Angel, that, so far as it is able to do so it shall, and shall procure that each of its Associates shall, exercise (or procure the exercise of) the Voting Rights (subject always to Applicable Law) so that:
(a) The the Group is capable at all times of, and not precluded or inhibited at any time from, carrying on business independently of the Investor and its Associates;
(b) subject to sub-paragraph (a) above, it does not take any action that would have the effect of preventing any member of the Group from complying with its obligations under any Applicable Law, including, without limitation AIM Rule 13 (Related Party Transactions);
(c) subject to Applicable Laws and provisions of this Deed, the Company shall be managed in accordance with the principles of the QCA Code as far as that are deemed by the Board to be appropriate for a company of its size, or any other corporate governance regime adopted by the Board from time to time;
(d) no variations are made to the Articles which shall ▇▇▇▇▇▇ the Company’s ability to carry out its Business independently of the Investor and his Associates;
(e) subject to the provisions of the Strategic Investment Manager agrees:Agreement, all transactions, agreements or arrangements entered into between the Group on the one hand and the Investor and/or its Associates on the other (or their enforcement, implementation or amendment) will be made at arm’s length and on a normal commercial basis and its enforcement determined by the Non-Connected Directors alone on behalf of the Group as far as is reasonable and commercially practicable in the circumstances;
(f) no general meeting of the Company is to be requisitioned by it or its Associates in order to seek to propose a resolution to appoint or remove any director or officer from time to time of the Company or amend the Articles in such a way as might reasonably be expected to adversely affect the independence of the Group from the Investor and or its Associates or in a manner which conflicts with this Deed to the detriment of the Group;
(g) any actual or potential conflicts of interest of the Investor and/or its Associates which may arise and of which the Investor is aware are declared to the Independent Directors as soon as reasonably practicable to do so;
(h) neither the Investor nor any Associate thereof shall seek to procure or vote on any resolution to cancel the Company’s admission to trading on AIM without the approval of the Independent Directors, save in connection with a general offer made to the Shareholders to acquire all of the issued share capital of the Company (excluding the Ordinary Shares which are already owned by the person making said offer and any other person acting in concert with him); and
(i) it shall use its reasonable endeavours to furnish the Company with quarterly statements of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;
(ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio procure that the Company deems to be in violation Board of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery Directors consists of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery majority of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any brokerNon-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsConnected Directors.
Appears in 1 contract
Sources: Relationship Agreement
Undertakings. 7.1 The Founder undertakes to the Purchaser to procure that the Company shall comply with the following prior to Completion:
(a) The Investment Manager agreesthe business shall be conducted only in the ordinary course of business;
(b) the Company shall use reasonable efforts to preserve its business organisation, the goodwill of its customers, suppliers and others having business relations with it, and shall not in any way depart from the ordinary course of its day to day business either as regards the nature, scope or manner of conducting the same;
(c) the Company shall use reasonable endeavours to collect its accounts receivables in accordance with its normal course of business;
(d) the Company shall use reasonable endeavours to settle its trading debts in accordance with its normal course of business;
(e) the Company shall duly and timeously observe and comply in all material respects with all laws, rules, regulations, ordinances, codes, orders, licences, agreements and permits relating to its assets and business;
(f) the Company shall not enter into or agree to, create, extend, grant, issue, permit or assume any obligation for any security agreement, lien, encumbrance, mortgage, charge, debenture, deed of trust, pledge, conditional sale or other title retention agreement, covenants, restriction or other burden upon any of its assets;
(g) the Company shall sell, not transfer, lease, assign, encumber, dispose of or part with control of any interest in all or any material part of its undertaking, business or property or assets (tangible or intangible) or enter into any agreement for the same;
(h) the Company shall not create or issue or agree to create or issue any share or loan capital or any securities convertible into shares the Company or give or agree any option in respect of any share or loan capital;
(i) the Company shall not enter into any long term or abnormal contract or capital commitment or any material contract which is not terminable without any claim for damages by the giving of not more than three (3) months’ notice by the Company, other than contacts entered into in the ordinary course of business;
(j) the Company shall not make any alteration to the provisions of its memorandum of association;
(k) the Company shall not declare any dividends or make any other distributions of any kind or buy back any of their shares without the prior written consent of the Purchaser.
(l) the Company shall not pay or agree to pay to its directors or any of them any remuneration or other emoluments or benefits whatsoever other than those which are currently being paid as at the date of this Agreement;
(m) the Company shall not acquire any assets of a value in excess of [S$10,000]; and
(n) the Company shall pay and discharge before the same shall become delinquent:
(i) to furnish the Company with quarterly statements of the Portfolioall taxes, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, assessments and for any other security governmental charges imposed upon it or asset in a manner determined in good faith by the Investment Manager to reflect upon its fair market value;property; and
(ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company all lawful claims which, if unpaid, might by law become a lien upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereofits property.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Undertakings. Each of the Seller and the Obligor irrevocably agree and undertake, on their own behalf and not on behalf of one another, to the Bank as follows:
(a) The Investment Manager agrees:(Seller only) not to assign the Contract or sell the Receivables to any person other than the Bank, not to encumber the Contract or the Receivables with any security interest, and not to transfer them or burden them in any other manner;
(b) to execute, sign and deliver all documents for the fulfilment of the terms and conditions of the Purchase Documents and take each and every action reasonably needed for the Bank to obtain the exclusive rights on the Receivables and to hand over to the Bank without any delay all necessary documents and to give all necessary information concerning the Receivables requested by the Bank;
(c) not to breach any provision of the Contract materially affecting the rights of the Bank to collect the Receivables;
(d) (Seller only) unless the Seller has paid to the Bank the full amount stipulated in Clause 8.2 (Reduction of Annual Fee), Seller shall not agree on a Reduction of the Annual Fee without the explicit prior written consent of the Bank;
(e) (Seller only) unless Seller has paid to the Bank the full amount stipulated in Clause 8.1 (Earlier Expiry of the Contract), Seller shall not sell, transfer or otherwise dispose of the Facilities without the explicit prior written consent of the Bank;
(f) (Seller only) without the explicit prior written consent of the Bank, other than the Contract which the Obligor may record on the title of the Facilities, not to create, extend or permit to arise or subsist any security interest, mortgage, pledge, or any other agreement or arrangement having the effect of conferring security over or in respect of the whole or any part of the Facilities;
(g) (Seller only) without the explicit prior written consent of the Bank not to agree to any changes of the Contract materially affecting the right of the Bank to collect the Receivables in particular not to agree to any amendment of the Contract concerning the payment of the Annual Fee as defined and provided in article 4 (a) of the Contract.;
(h) to assist the Bank (without receiving any fees or cost reimbursement therefore) at Bank's request in any judicial or other action for the enforcement of, or the preservation of any rights in respect of, the Receivables and the security and ancillary rights thereto, if any;
(i) (Seller only) to furnish the Company with quarterly statements ensure that each of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, representations and warranties given by the principal exchange on which Seller in Clause 11 (Representations and Warranties) of these Terms and Conditions will continue to be true and accurate in all material respects until the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;
(ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf Bank has received full payment of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedReceivables; and
(vj) (Seller only) to indemnify deliver to the Fund against any lossesBank as soon as the same become available, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained but in any registration statement, prospectus, proxy statement, report or event within 120 days after the end of each of its financial years its unaudited financial statements for such financial year and such other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with financial information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) Bank reasonably requests from time to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities laws.
Appears in 1 contract
Sources: Offer for Purchase of Receivables (Magna Entertainment Corp)
Undertakings. 2.1 In consideration of the respective undertakings of the parties, in particular, Parent’s undertakings in connection with the Merger, we irrevocably and unconditionally undertake, confirm, represent and warrant to Parent that (a) The Investment Manager agrees:
we, directly or indirectly through our subsidiaries, own and control 104,175,958 ordinary stock units in the capital of UEL, and 591,800 preference shares in UEL (icollectively, the “Relevant Securities”) to furnish the Company with quarterly statements representing approximately 17% of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case existing issued share capital of securities not so reported, by the principal exchange on which the security is traded, UEL (excluding treasury and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;
(ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolionon-voting shares); (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:we do not have any other interest in any shares or securities of UEL other than the Relevant Securities save for any interest in certain non-voting shares of UEL which are held by WBL Corporation Limited; and (c) we are the beneficial owner of, or are otherwise able to control the exercise of, all rights attaching to, including voting rights, and the ability to procure the transfer of, the Relevant Securities.
2.2 We irrevocably and unconditionally undertake to (ia) attend and/or procure the attendance by proxy at the EGM, or at any adjournment thereof, and cause the Relevant Securities to advise be counted as present thereat for purpose of calculating a quorum; and (b) exercise and/or procure the Investment Manager exercise of all voting rights attaching to the Relevant Securities at the EGM, or at any adjournment thereof, in favor of any resolution required to approve the Merger, including the voting by UEL or its relevant subsidiaries, of up to all shares they hold in the Company, as will be set out in the notice of meeting in the circular to be sent to shareholders of UEL.
2.3 We irrevocably and unconditionally undertake that we will not, until the close of the investment objectivesEGM, policies and restrictions without prior written consent of Parent, sell, transfer, charge, encumber, grant any option over or otherwise dispose of, or permit any of the Fund and same, all or any of the Relevant Securities or interest in any changes Relevant Securities, or modifications thereto accept any offer in respect of all or any Relevant Securities, or enter in any agreement as regards any interest in the Relevant Securities.
2.4 We consent to the issue of a press announcement incorporating references to us and to notify the Investment Manager promptly of any other changes this undertaking substantially in the Portfolio terms set out in the Draft Announcement. We agree that particulars of which the Investment Manager would not otherwise have knowledge;
(ii) this undertaking to advise the Investment Manager of any specific investment restrictions applicable be disclosed in a circular sent to the Portfolio and to give the Investment Manager promptly written notice shareholders of any investments made for the Portfolio that the Company deems to UEL will be in violation of such objectives or restrictions;
(iii) form and substance reasonably satisfactory to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsus.
Appears in 1 contract
Undertakings. 8.1 Ordinary Course of Business From the Agreement Date until Closing, Sellers shall (aexcept as may be approved by Purchaser in writing) The Investment Manager agreesuse all of their respective corporate rights as shareholders of the Company to ensure that the business of the BGS Group is carried on only in the ordinary course of business. For the avoidance of doubt, Sellers undertake to use all of their respective corporate rights as shareholder of the Company to procure, to the extent legally possible and it is within their power from time to time, that between the Agreement Date an Closing, no action is taken or resolution passed by the Company in respect of the following matters (other than as contemplated hereby or in connection with the Demerger), without the prior written consent of Purchaser, which shall not be unreasonably withheld:
(i) any change to furnish the Company with quarterly statements its deed of the Portfolioincorporation, valuedarticles of association, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any by-laws or other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market valueconstitutional documents;
(ii) to furnish statements to the Company evidencing any purchases appointment and sales for removal of its auditors, or the Portfolio as soon as practicable after such transactions have taken placechange in its accounting policies;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requested; and
(v) to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement presentation of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically petition for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMAits winding-up;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to any change in the Investment Manager in a timely mannershare capital or the creation, including, but not limited to, effecting delivery allotment or issue of any Proxy solicitation received by a third party who may hold securities on behalf shares or of any other security or the Fund, and grant of any option or rights to verify, sub-scribe for or to cause convert any instrument into such third party to verifyshares or securities, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund each case other than as of the record date for voting the Proxies; andset out herein;
(v) any reduction or redemption of the share capital or variation of the rights attaching to any class of shares or any redemption, purchase or other acquisition by any relevant company of any shares or other securities of that company;
(vi) its sale or the sale of all or substantially all of its business or assets or any merger, consolidation or amalgamation with any other person;
(vii) the cessation of any material business operation;
(viii) any material change to the nature or geographical area of its business or carrying on any business other than its business as currently carried on, except to the extent provided for in this Agreement;
(ix) the payment or declaration of any dividend or other distribution on account of shares in its capital, except for Permitted leakage;
(x) the incorporation of a new subsidiary undertaking (other than NewCo) or the acquisition of any share capital or other securities or other equity interests of any other person or the change in the composition of a board of directors or supervisory board;
(xi) the incurrence of any financial indebtedness other than normal trade credit;
(xii) any sale, lease, creation of a security interest over or other disposal of any of the Company’s assets material to its operations (including by way of contribution in kind or exchange) otherwise than in the ordinary course of business or entry into any unusual or onerous transaction or any transaction (including by way of finance lease) not in the ordinary course of business or trading;
(xiii) to hold the Investment Managercease to maintain in force policies of insurance with limits of indemnity at least equal to, and otherwise on terms no less favorable than, the policies of insurance maintained by it immediately before execution of this Agreement; or
(xiv) the taking of any action which causes a breach of any of its directors, officers Seller’s Representations and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsWarranties.
Appears in 1 contract
Sources: Share Purchase Agreement (Net 1 Ueps Technologies Inc)
Undertakings. 7.1 The Borrower undertakes that, as and from the date of this Agreement and throughout the Security Period, it will comply in full with the following undertakings:
(a) The Investment Manager agreesthe Borrower will send (or procure that there is sent) to the Lender:
(i) to furnish as soon as available, and in any event within one hundred and twenty (120) days after the Company with quarterly end of each financial year of the Borrower, the consolidated accounts and financial statements of the PortfolioBorrower and its Subsidiaries and the individual accounts and financial statements of the Guarantor, valued, for each security listed on any national securities exchange at such accounts and financial statements to be prepared in accordance with generally accepted international accounting principles consistently applied and certified as to their correctness by a firm of chartered accountants acceptable to the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market valueLender;
(ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio as soon as practicable available, and in any event within ninety (90) days after such transactions have taken placethe end of each 3-month period in each financial year of the Borrower, quarterly financial information of the Borrower (including, without limitation, a list of vessels owned at that time by all the Subsidiaries of the Borrower) in form and substance acceptable to the Lender;
(iii) to maintain strict confidence in regard as soon as the same is instituted (or, to the Portfolio; knowledge of the Borrower, threatened), details of any litigation, arbitration or administrative proceedings against or involving the Borrower, the Guarantor, the Approved Manager, the Approved Sub-Manager or the Ship (including any actual breach of the ISM Code) which is likely to have a material adverse effect on the Borrower, the Guarantor or the operation of the Ship;
(iv) promptly upon being sent, copies of all communications to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund its shareholders and/or creditors generally (and in their capacities as shall be reasonably requestedsuch); and
(v) from time to indemnify the Fund against any lossestime, claimsand on demand, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report such additional financial or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein information (including but not misleading, limited to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished ISM Code Documentation) relating to the Borrower and/or the Guarantor and/or the Ship as may be requested by the Investment Manager to the Company specifically for use in the preparation thereof.Lender;
(b) The Company agrees:
(i) to advise the Investment Manager of Borrower will notify the investment objectives, policies and restrictions of the Fund and Lender of any changes Event of Default (or modifications thereto and to notify event which, with the Investment Manager promptly giving of any notice and/or lapse of time or other changes in applicable condition, might constitute an Event of Default) forthwith upon the Portfolio of which the Investment Manager would not otherwise have knowledgeoccurrence thereof;
(iic) the Borrower will maintain its corporate existence as a body corporate duly organised and validly existing and in good standing under the laws of Bermuda and will obtain and promptly renew from time to advise the Investment Manager of any specific investment restrictions applicable time, and will promptly furnish certified copies to the Portfolio Lender of, all such authorisations, approvals, consents and licences as may be required under any applicable law or regulation to give enable the Investment Manager promptly written notice Borrower to perform its obligations under this Agreement, the Master Agreement and the Security Documents to which the Borrower is a party (or any of any investments made them) or required for the Portfolio that validity or enforceability of this Agreement, the Company deems Master Agreement and the Security Documents to be in violation which the Borrower is a party (or any of such objectives or restrictionsthem) and the Borrower shall comply with the terms of the same;
(iiid) the Borrower will not without the prior consent of the Lender, create, assume or permit to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager exist any Security Interest upon any of its assets (whether now owned or KBIMA;
hereafter acquired) (iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery the Borrower’s rights against the Lender under the Master Agreement or all or any part of the Borrower’s interest in any amount payable to the Borrower by the Lender under the Master Agreement) except as contemplated by the Security Documents;
(e) the Borrower will not (voluntarily or involuntarily) without the prior consent of the Lender, sell, convey, transfer, lease, or otherwise dispose of all or a substantial part of its assets (whether by one transaction or a series of transactions and whether related or not);
(f) the Borrower will procure that the Guarantor shall comply with the ISM Code and notify the Lender in writing in the event that either the DOC or SMC is withdrawn, cancelled or suspended;
(g) the Borrower will procure the observance and performance by the other Security Parties of the terms of the Security Documents to which they are each respectively a party;
(h) the Borrower will keep the Lender fully informed at the earliest opportunity and, in any event at regular intervals of not more than three (3) months, of any Proxy solicitation received actual or proposed purchases of any ship, vessel or other asset by a third party who may hold securities on behalf any company within the same beneficial ownership or control of the FundBorrower, and to verifythe Guarantor, the Approved Manager or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the ProxiesApproved Sub-Manager; and
(vi) the Borrower will procure that its liabilities under this Agreement, the Master Agreement and the Security Documents to which it is a party do and will rank at least pari passu with all its other present and future unsecured liabilities, except for liabilities which are mandatorily preferred by law.
7.2 The Borrower further undertakes that it shall not, as and from the date of this Agreement and throughout the Security Period, without the prior consent of the Lender (such consent not to hold be unreasonably withheld):
(a) change the Investment Managernature of its business nor make any commitments, and other than those occurring in the ordinary course of its business (including, without limitation, commitments in respect of purchases of ships); or
(b) assign or otherwise dispose of any of its directorsbook debts; or
(c) reduce its issued share capital; or
(d) consolidate or amalgamate with, officers or merge into, any other entity.
(a) The Borrower hereby further undertakes that if (after the Ship has been delivered to it under the Shipbuilding Contract), and employeesso often as, liable, under the market value (as determined in accordance with Clause 7.3(b)) of the Ship (plus the market value of any circumstances additional security for any error the time being actually provided to the Lender pursuant to this Clause 7.3) falls below One hundred and twenty per cent. (120%) of judgment the Loan plus or other action taken or omitted minus (as the case may be) the notional amount determined by the Investment Manager Lender in its absolute discretion as the amount which would become due from or to the Subadviser Borrower on terminating any Transaction under the Master Agreement in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in same manner as if it were a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct Terminated Transaction (all as defined in Section 14 of the 1940 ActMaster Agreement) effected by the Lender after an Event of Default, it will within ten (10) days of being notified by the Lender of such requirement (which notification shall be conclusive and binding on the Borrower) either:
(i) provide the Lender with, or procure the provision to the Lender of, such additional security as shall in the opinion of the Lender be adequate to make up such deficiency, which additional security shall take such form, be constituted by such documentation and be entered into between such parties as the Lender in its absolute discretion may approve or require (and, if the Borrower does not make proposals satisfactory to the Lender in relation to such additional security within five (5) days of the date of the Lender’s notification to the Borrower aforesaid, the Borrower shall be deemed to have elected to prepay in accordance with (ii) below); or
(ii) prepay (subject to, and in accordance with, sub-clauses (c), (d) and (e) of Clause 4.2) such part of the Loan as will ensure that the market value (determined as aforesaid) of the Ship and any such additional security is after such prepayment at least One hundred and twenty per cent. (120%) of the Loan plus or minus (as the case may be) such notional amount as determined by the Lender in its absolute discretion as the amount which would become due from or to the Borrower on terminating any Transaction under the Master Agreement in the same manner as if it were a Terminated Transaction (as defined in Section 14 of the Master Agreement) effected by the Lender after an Event of Default.
(b) For the purposes of this Clause 7.3, the market value of the Ship shall be determined (at the expense of the Borrower) at any such time as the Lender may request on the basis of a valuation prepared by an independent sale and purchase shipbroker as may from time to time be appointed by the Lender. For this purpose, each such valuation shall be made with or without physical inspection of the Ship (as the Lender may require), on the basis of a sale for prompt delivery for cash at arm’s length on normal commercial terms as between a willing seller and a willing buyer, free of any existing charter or other contract of employment. The federal Borrower agrees to accept any valuation made by the independent sale and state securities laws impose liabilities under certain circumstances on persons who act purchase shipbroker appointed as aforesaid as conclusive evidence of the market value of the Ship at the date of such valuation. The Borrower agrees to supply to the Lender and to any such independent sale and purchase shipbroker such information concerning the Ship and her condition as such the independent sale and purchase shipbroker may require for the purpose of making such valuation. Subject to no Event of Default having occurred, the Borrower shall only be obliged to pay the fees and expenses of up to one valuation of the Ship commissioned by the Lender in good faitheach calendar year.
(c) For the purpose of this Clause 7.3, the market value of any additional security provided or to be provided to the Lender shall be determined by the Lender in its absolute discretion without any necessity for the Lender assigning any reason therefor.
(d) In connection with any additional security provided in accordance with this Clause 7.3, the Lender shall be entitled to receive certified copies of such documents of the kinds referred to in sub-clauses (a), (b), (c), (d) and therefore nothing herein (e) (inclusive) of Clause 5.1 and such favourable legal opinions as the Lender shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsits absolute discretion require.
Appears in 1 contract
Undertakings. 3.1 The Assignor hereby undertakes to the Assignee that it will:
(a) The Investment Manager agrees:duly and punctually observe and perform all the conditions and obligations imposed on it by the Required Risk Management Agreements and not take or omit to take any action the taking or omission of which might result in any impairment of any of its rights thereunder or of this Deed and the rights and benefits hereby assigned;
(b) advise the Assignee promptly upon becoming aware of any default by the relevant counterparty in the performance of any of such counterparty's obligations under the Required Risk Management Agreements;
(c) not, without the prior written consent of the Assignee and the Facility Agent, agree to, or permit or suffer any amendment or variation whatsoever in the terms of, nor consent or agree to any waiver or release of any obligation of the relevant party under, or in connection with the Required Risk Management Agreements;
(d) not, without the prior written consent of the Facility Agent, (i) exercise any right which it may have to furnish cancel or rescind the Company with quarterly statements of Required Risk Management Agreements or claim that the PortfolioRequired Risk Management Agreements are frustrated, valuedand, for each security listed on if any national securities exchange at such right arises, notify the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not Facility Agent immediately thereof and exercise such right if required so reported, to do by the principal exchange on which Facility Agent and at such time and in such manner as the security is tradedFacility Agent shall direct, and for or (ii) commence arbitration or other legal proceedings in respect of any other security matter arising out of or asset in a manner determined in good faith by connection with the Investment Manager to reflect its fair market valueRequired Risk Management Agreements;
(iie) to furnish statements produce to the Company evidencing any purchases Assignee and sales for the Portfolio as soon as practicable after Facility Agent such transactions have taken place;
(iii) to maintain strict confidence in regard information relating to the Portfolio; (iv) Required Risk Management Agreements as the Assignee may from time to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be time reasonably requestedrequire; and
(vf) promptly upon receipt thereof, give to indemnify the Fund against any losses, claims, damages, liabilities or expenses arising out of or based upon any untrue statement Assignee a copy of any material fact contained in any registration statementnotice, prospectus, proxy statement, report certificate or other document, communication received by it from the relevant counterparty under or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, relating to the extent that such untrue statement Required Risk Management Agreements, apart from routine day-to-day communications not materially affecting the rights or omission was made in reliance upon and in conformity with information furnished by obligations of either the Investment Manager to the Company specifically for use in the preparation thereof.
(b) The Company agrees:
(i) to advise the Investment Manager of the investment objectives, policies and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third relevant party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in Assignor or the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsAssignee thereunder.
Appears in 1 contract
Undertakings. 6.1. The Customer undertakes to the Bank that it shall:
(a) The Investment Manager agrees:promptly inform the Bank of the occurrence of any Event of Default;
(b) not sell, or transfer any rights in the Property, or transfer any obligations in respect thereof, or sub-lease the Property to any other party, or enter into any negotiations pertaining to any of the above, unless specifically agreed to by the Bank in writing;
(c) ensure that the Property shall be used only for the designated purposes for which such Property is leased and the Customer shall not take, omit to take or permit any action that could reasonably be expected to have a material adverse effect on the value of the Property or the interests of the Bank;
(d) immediately produce to the Bank any order, directive, notice, permission sought or any other matter that has a direct impact on or is likely to affect the Property or cause a Material Adverse Effect and will provide the Bank with a copy of the same, including (but is not limited to) any such order, directive, permission sought by any local or federal authority;
(e) not remove any fixtures and fittings from the Property that is likely to detract from the value of the Property;
(f) not to grant, execute or register any Security Interest in respect of the Property in favour of any third party, without the prior written consent of the Bank;
(g) punctually pay all management fees, service charges, rates, taxes, licences, service and other charges levied and to be levied at any time in respect of the use of the Property (the “Fees”) when due and the Customer shall on demand by the Bank provide receipts thereof to the Bank provided that where any such fees are not paid on the due date, the Bank may pay any Fee and any moneys so disbursed shall on demand by the Bank be refunded by the Customer. In the event the Customer fails to pay to the Bank, without prejudice to the Bank’s rights and remedies under the Finance Documents and under law, Clause 7.3 will apply;
(h) not make any building or structural changes to the Property without the prior written consent of the Bank; and
(i) to furnish ensure that the Company Customer acts in accordance with quarterly statements of the Portfolio, valued, for each security listed on provisions stipulated in any national securities exchange at insurance / takaful policy taken out in connection with this Agreement and shall not take any actions that will invalidate such insurances / takaful or increase the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, by the principal exchange on which the security is traded, cost thereof.
6.2. Customer hereby acknowledges and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;confirms that
(iia) to furnish statements to the Company evidencing any purchases Rental Payments are appropriate and sales for the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedfair; and
(vb) the Bank will not be obligated to indemnify adjust the Fund against Rental Payments (paid amounts) according to any losses, claims, damages, liabilities benchmark or expenses arising out of or based upon market rental for any untrue statement of any material fact contained in any registration statement, prospectus, proxy statement, report or other document, or any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereofreason whatsoever.
(bc) The Company agrees:
(i) to advise Customer hereby waives any right which the Investment Manager of the investment objectives, policies and restrictions of the Fund and Customer may now or in future have in respect of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledge;
(ii) to advise the Investment Manager of any specific investment restrictions applicable adjustments to the Portfolio Rental amounts paid and due but unpaid, according to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives benchmark or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the Proxies; and
(v) not to hold the Investment Manager, and any of its directors, officers and employees, liable, under any circumstances market rental for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsreason whatsoever.
Appears in 1 contract
Sources: Lease Agreement
Undertakings. 8.1 The Pledgor hereby undertakes, save as otherwise permitted under the Transaction Documents:
(a) The Investment Manager agrees:to subscribe for every increase in the Company’s share capital such that it always holds 100% of the issued and outstanding shares in the Company, subject to the Purchase and Sale Agreement;
(b) to assist the Secured Party in exercising any of its rights and powers under this Agreement;
(c) to assist the Secured Party in obtaining any necessary approvals and authorisations from any relevant persons in order to enforce the Pledge;
(d) not to amend the Company’s articles of association without the Secured Party’s prior written consent;
(e) not to lease, sell, dispose of, pledge or otherwise encumber, all or any part of the Pledged Assets or any interest therein to anyone other than (i) pursuant to this Agreement; and (ii) pursuant to and in accordance with the Purchase and Sale Agreement;
(f) to take whatever action necessary to maintain the validity, perfection and enforceability of the Pledge and to enable the Secured Party to exercise its rights under this Agreement;
(g) not to take or permit to be taken, any action which could potentially adversely affect the validity, perfection or enforceability of the Pledge and to immediately inform the Secured Party of any event which could potentially have the same effect;
(h) not to distribute any Dividends if prohibited under the Purchase and Sale Agreement;
(i) to furnish notify the Company with quarterly statements Secured Party of the Portfolio, valued, for each security listed on any national securities exchange at the last quoted sale price on the valuation date reported on the composite tape or, in the case of securities not so reported, future Shares to be issued by the principal exchange on which the security is traded, and for any other security or asset in a manner determined in good faith by the Investment Manager to reflect its fair market value;
(ii) to furnish statements to the Company evidencing any purchases and sales for the Portfolio as soon as practicable after such transactions have taken place;
(iii) to maintain strict confidence in regard to the Portfolio; (iv) to provide to the Company upon request a written report with respect to the voting of Proxies by the Investment Manager or KBIMA on behalf of the Fund. The Investment Manager shall provide such additional reports to the Company concerning the voting of Proxies on behalf of the Fund as shall be reasonably requestedCompany; and
(vj) until the release of this Agreement in accordance with the Purchase and Sale Agreement, the Pledgor shall not, after a claim has been made or by virtue of any payment made, security realised or moneys received hereunder for the account of the liabilities of any other party:
i. be subrogated to indemnify any rights, security or moneys held, received or receivable by the Fund Secured Party or be entitled to any right of contribution or indemnity;
ii. receive claims or have the benefit of payments, distributions or security from or on account of any party to this Agreement, or exercise any rights of set-off as against such other party to this Agreement, other than as permitted by the Purchase and Sale Agreement or this Agreement;
iii. exercise any Rights of Recourse or any other rights against any lossesperson, claims, damages, liabilities or expenses arising out of or based upon any untrue statement of any material fact contained company and/or entity in any registration statementmanner (including for the avoidance of doubt, prospectus, proxy statement, report by way of provisional measures such as provisional attachment (saisie arret conservatoire) or by way of set off) or take any action or do anything in relation to such Rights of Recourse or other documentsimilar rights, or for as long as any amendment or supplement thereto, or arising out of or based upon any omission to state therein any material fact required to be stated therein or necessary to make amount under the statements therein not misleading, to Secured Obligations remains outstanding.
8.2 The Company hereby undertakes to:
(a) maintain the extent that such untrue statement or omission was made in reliance upon and in conformity with information furnished by the Investment Manager to the Company specifically for use in the preparation thereof.up-to-date Register at its registered office;
(b) The Company agrees:
(i) to advise assist the Investment Manager Secured Party in exercising any of the investment objectives, policies its rights and restrictions of the Fund and of any changes or modifications thereto and to notify the Investment Manager promptly of any other changes in the Portfolio of which the Investment Manager would not otherwise have knowledgepowers under this Agreement;
(iic) assist the Secured Party in obtaining any necessary approvals and authorisations from any relevant persons in order to advise enforce the Investment Manager of any specific investment restrictions applicable to the Portfolio and to give the Investment Manager promptly written notice of any investments made for the Portfolio that the Company deems to be in violation of such objectives or restrictions;
(iii) to maintain in strict confidence and for use only with respect to the Portfolio all investment advice given by the Investment Manager or KBIMA;
(iv) to take all actions necessary to effect delivery of Proxy solicitations to the Investment Manager in a timely manner, including, but not limited to, effecting delivery of any Proxy solicitation received by a third party who may hold securities on behalf of the Fund, and to verify, or to cause such third party to verify, at such time, that the number of shares of an issuer's securities indicated in a Proxy solicitation equals the number of shares of such issuer's securities held by or for the benefit of the Fund as of the record date for voting the ProxiesPledge; and
(vd) not to hold distribute any Dividends if prohibited under the Investment Manager, Purchase and any of its directors, officers and employees, liable, under any circumstances for any error of judgment or other action taken or omitted by the Investment Manager or the Subadviser in the good faith exercise of their powers hereunder or arising out of an act or omission of the Custodian, or of any broker-dealer or agent selected by the Investment Manager or KBIMA in good faith and in a commercially reasonable manner, excepting matters as to which the Investment Manager or KBIMA shall be finally adjudged to have been guilty of willful misfeasance, bad faith, gross negligence, reckless disregard of duty or breach of fiduciary duty involving personal misconduct (all as defined in the 1940 Act). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the undersigned may have under any federal and state securities lawsSale Agreement.
Appears in 1 contract